process is too principle-prone and principle-bound-it has to be,
there is no other justification or explanation for the role it
plays. It is also too remote from conditions, and deals, case by
case, with too narrow a slice of reality. It is not accessible to
all the varied interests that are in play in any decision of great
consequence. It is, very properly, independent. It is passive. It
has difficulty controlling the stages by which it approaches a
problem. It rushes forward too fast, or it lags; its pace hardly
ever seems just right. For all these reasons, it is, in a vast,
complex, changeable society, a most unsuitable instrument for the
formation of policy.
Critics of the judiciary's ever-growing
role in American politics usually focus on how it erodes
self-government or, most severely, leads to judicial tyranny. If,
as James Madison argues in Federalist No. 47, the
accumulation of legislative, executive, and judicial powers in the
same hands "is the very definition of tyranny," these concerns are
well founded. With the courts determining public policy on
everything from abortion to obscenity to public displays of the Ten
Commandments, there is no shortage of evidence on display.
Exhibit A for anyone making a case
against judicial policymaking, however, would have to be
Missouri v. Jenkins. This case, which reached the Supreme Court
three times, witnessed a federal judge, Russell Clark, mandating
tax increases on those living in the Kansas City, Missouri, School
District (KCMSD) in order to pay for educational programs and
facilities. Almost all schools in the district were turned into
magnet schools with special themes such as Slavic studies,
performing arts, classical Greek, and agribusiness. But such
programs required special facilities and instructors, so the KCMSD
was lavished with, among other things, petting zoos,
climate-controlled art galleries, and a model United Nations with
simultaneous translation capability. One high school was so finely
appointed that it became known as the "Taj Mahal."
Judge Clark's goal was to lure white
students from the suburbs into the district while simultaneously
improving the quality of education for Kansas City's minority
children. The judge failed.
After more than $2 billion had been
spent and the minutest details of the school district's operations
had been regulated, suburban white students stayed away, and the
academic performance of the students trapped in the district
declined-a difficult feat considering the district's already
abysmal test scores.
Missouri v. Jenkins therefore
illustrates something other than pure judicial tyranny at work. It
illustrates judicial incompetence. While the taxpayers of Kansas
City doubtless have opinions about living under a court's
enlightened rule, what is most striking and significant is that
after seizing all of that power, the court accomplished so little.
Granted, elaborate buildings and programs were constructed, but
they were just means to an end. How could the exercise of so much
power leave the court no closer to, and arguably further away from,
its primary goals than when it started?
The evidence from Missouri v.
Jenkins indicates that courts are ill-equipped to make public
policy, whether judges act tyrannically or have benign intentions.
Thus, there appear to be two different types of arguments,
principled and practical, against judicial policymaking. The first
appeals to the Constitution: Judges should avoid making policy
because it violates the principle of separation of powers. The
second avoids criticizing the legitimacy of judicial policymaking
and instead questions the capacity of courts to achieve their
But the two arguments are closely
related since it appears that separation of powers, even though it
is a principle, has practical outcomes. Typically, it is considered
simply a check on tyranny. What is often neglected is its role in
creating good government.
It might be more effective to consider
the capacity of judges to make public policy than solely focusing
on principle to limit judicial policymaking. Once again, the
Federalist Papers are instructive. If, as Publius asserts,
relying on "the weaker springs of the human character" is
imprudent, perhaps focusing on the consequences of policymaking
will do more to restrain judges than can be accomplished by
appealing to their duties. If judicial policymaking expeditions end up
in a morass, accomplishing little or nothing at all after decades
of oversight, judges might shy away from such adventures out of
self-interest. Appealing to principle is unlikely to persuade those
who believe that separation of powers is an antiquated notion from
a less enlightened era, but they might be persuaded by appeals to
For my book on Missouri v.
Jenkins, I chose the title Complex Justice. This title
seemed apt because, as perhaps the Supreme Court's last statement
on desegregation, the case contrasted with Richard Kluger's famous
and remarkable book on Brown v. Board of Education,
Simple Justice. In Brown,the remedy was obvious: Let
children attend the school closest to their homes. In Missouri
v. Jenkins, things had obviously gotten more complicated, but
the case history and the remedies imposed by the courts were
complicated. Thus, before addressing what the case tells us about
the criticisms of judicial policymaking, it will be useful to
outline briefly its history.
Missouri v. Jenkins: Case
In 1977, the Kansas City School
District became the first and only school district to file a
desegregation suit. The school board accused suburban school
districts, the State of Missouri, and multiple federal agencies of
adopting policies that had the effect of concentrating minority
students in the KCMSD.
Judge Clark made his first preliminary
ruling on the case in 1978. He took the surprising step of ruling
that the KCMSD should not be a plaintiff and realigned the district
as a defendant. His rationale was that the district was bringing
the suit only for monetary reasons (which was true) and thus could
not be trusted to be a reliable advocate for the constitutional
interests of the students of the school district.
However, this put the school district
in a perverse situation. It could win only by losing and lose by
winning. It could receive the remedies for which it initially sued
only if the court determined that it was unconstitutionally
segregated; if it won the case, it would not receive the remedies.
After 1978, the district consistently argued that it was
unconstitutionally segregated-a position it had consistently
The case finally came to trial in 1983.
A young, white, liberal attorney, Arthur Benson, had come forward
to represent the students of the KCMSD. In 1984, Judge Clark ruled
that the KCMSD was unconstitutionally segregated and held the
district and the state of Missouri responsible, but he dismissed
the case against the suburban districts and federal agencies. In
the following years, Judge Clark ordered massive improvements in
the district and decided to mandate tax increases to pay for
In 1990, the Supreme Court created a
distinction without a difference, ruling that Judge Clark had
exceeded his power by mandating a specific level for his tax
increase but simultaneously holding that he could raise taxes as
long as the offending party (the school district) determined what
tax rate was necessary to pay for the remedial plan. In
1995, the Court finally addressed the scope of the plan and ruled
that it was an interdistrict remedy for an
intradistrict violation, which violated the Court's
precedent in Milliken v. Bradley (1974). After this decision,
the case died a slow death, finally expiring in 2003.
The Institutional Nihilism of Legal Realism
Understanding the practical argument
against judicial policymaking requires knowing what it was
responding to: "legal realism." Legal realism rose to prominence in
the 1920s and 1930s. Among its most prominent advocates were Karl
Llewellyn, Thurman Arnold, Max Radin, and Jerome Frank, but it had
as its intellectual forbears Justice Oliver Wendell Holmes, Jr.,
and Roscoe Pound. In The Common Law, Holmes had
famously argued that:
The life of the law has not been logic;
it has been experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of public
policy, avowed or unconscious, even the prejudices which judges
share with their fellow men, have had a good deal more to do than
the syllogism in determining the rules by which men should be
This position was echoed in legal
realism's central empirical claim: Judges do not make decisions
based on legal materials or legal reasoning. Instead, they make
decisions based on how the facts of a case strike them. That is,
judges make up their minds about the proper outcome of a case and
then create the legal reasoning as a diversionary adornment.
According to this theory, political ideology plays a far greater
role than constitutions or statutes in determining the outcome of
The upshot of legal realism is that the
law as we normally think of it does not exist at all. If judges
make decisions in this way, they are really just deciding what they
think is the best policy. The law becomes nothing but public
policy. In the parlance of legal realism, the law is
"indeterminate," which means that it is insufficient for
determining the outcome of cases. Thus, judges just do what they
think is best. Or, more bluntly, the law is whatever judges say it
Legal realism (at least in the view of
some of its proponents) was not content with making this empirical
claim, so it advanced a normative one as well: If the law is
nothing more than the policy preferences of judges, then judges
should not aspire to make legally correct decisions, but simply to
make good policy. Given good preferences, or at least the tools to
learn how to form them, they will make good public policy.
To do this, legal realists recommended
a complete revamping of legal education so that the law would
reflect the political ideology of lawyers and judges. Lawyers and
future judges needed training in the social sciences such as
political science, sociology, economics, and even Freudian
Peter Edelman, the former aide to
Robert Kennedy, recently gave a shockingly candid example of how
legal realists thought judges should make decisions. He recalled
that when he was clerking for Justice Arthur Goldberg, Goldberg's
"first question in approaching a case always was, 'What is the just
result?' Then he would work backward from the answer to that
question to see how it would comport with relevant theory or
In other words, Justice Goldberg did
not try to determine the outcome of the case based on the law. He
tried to make his desired outcome determine what the law should
There is an obvious constitutional
implication that flows from realism's normative position: If judges
are simply to make good public policy, the effect must be to erode
the boundaries among institutions. The judiciary necessarily
becomes another legislative branch. Institutionally, anything goes.
Nothing really separates what courts do from what elected branches
do. In fact, some legal realists explicitly called for judges to be
It would be inaccurate simply to label
legal realism the jurisprudential twin of political Progressivism,
but one notices striking similarities between the two. Both
obviously shared many of the same sentiments toward political and
social reform. Most notably, legal realism shared the Progressive
movement's goal of replacing politics with government by
enlightened experts. In this case, however, the experts were to be
judges. Likewise, their dispositions toward the Constitution were
For instance, the most important legal
realist, Karl Llewellyn of Columbia Law School, called America's
reverence for the Constitution "real" but "blind," a sentiment
certainly shared by many Progressives. The Constitution functioned
as a great symbol of security for Americans, but like all symbols,
it could be manipulated.
Llewellyn also derided what he called
"orthodox" constitutional interpretation for asking questions such
as "Is this within the powers granted by the Document?" This
question for him addressed the "nonessential" and "accidental," by
which he meant "what language happens to stand in the document." He
contrasted orthodox interpretation with "sane" interpretation,
which instead of consulting the text consults an "ideal picture."
Thus, his "sane theory would utterly disregard a Documentary text
if any relevant practices existed to offer a firmer, more living
basis for the ideal picture."Ultimately, for Llewellyn, the
important constitutional questions facing judges were not clearly
answered by the text but instead were "penumbra-like," and the
penumbra, he said, "will always be in flux."
Many legal realists, such as William O.
Douglas and Thurman Arnold, made their way to Washington in the
1930s to assist in designing and implementing the New Deal-with
Douglas eventually making his way to the Supreme Court. Few
exemplified political decision making on the Supreme Court more
than Douglas, whose "breezy" "polemical" opinions, Jeffrey Rosen
has observed, seem "unconcerned with the fine points of legal
doctrines" and "read more like stump speeches than carefully
reasoned constitutional arguments." Echoing Llewellyn, Douglas
also blessed us, in his majority opinion in Griswold v.
Connecticut, with the hopelessly obscure declaration "that
specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and
Undoubtedly, there is some truth to the
empirical claim of legal realism. The political preferences of
judges obviously affect their voting behavior. Any advocate
submitting a brief to the Court would certainly consider the
political preferences of the justices when crafting his or her
arguments. Today, if you want to predict how judges will decide
cases, the best way to do so is to get some measure of their
The "attitudinal" model, which "holds
that judges decide cases in light of their sincere ideological
values juxtaposed against the factual stimuli presented by the
case," marshals powerful statistical evidence
for its position. Even the most casual observer of the Supreme
Court notes the dreary, even banal, predictability of its splits
into liberal and conservative blocs in cases raising divisive
social and political issues. Of course, many of these cases hinge
on how factual stimuli will strike the ever-mercurial Justice
The question is whether we must be
resigned to this arbitrariness or whether there is instead some
method of judicial decision making, such as originalism, which
holds that the Constitution's meaning was established at the time
it was written and can bind judges to something other than their
political preferences. It is also reasonable to ask whether legal
realism was a self-fulfilling prophecy: Perhaps telling judges that
they should be social engineers led judges to embrace social
While legal realism faded from
prominence after the 1940s, its effects are still obviously with
us. This is most apparent in the debate over judicial policymaking.
The most able defenders of judicial policymaking explicitly reject,
as they must, separation of powers:
We have invested excessive time and
energy in the effort to define…what the precise scope of
judicial activity ought to be. Separation of powers comes in for a
good deal of veneration in our political and judicial rhetoric, but
it has always been hard to classify all government activity into
three, and only three, neat and mutually exclusive categories.
Others have gone even further and said
that judges have been willing to "engage in policy making" and
violate "the long-standing principles of federalism, separation of
powers, and the rule of law" because "there is something seriously
wrong with all three principles." Separation of powers in
particular is simply a relic of Newtonian science and "no longer
operationally relevant." This language, of course, harkens back to
another critic of separation of powers, Woodrow Wilson, who also
derided the Constitution for relying on Newtonian principles of
physics and wanted to move us beyond such constitutional
The Critique of Judicial
Legal realism's celebration of judicial
policymaking did not go unchallenged. In response to its
anything-goes attitude, scholars such as Lon Fuller, Henry Hart,
Herbert Wechsler, John Hart Ely, and Alexander Bickel developed the
"legal process" school, which was skeptical of the idea that courts
had the capacity to make effective public policy. This school, to
be sure, did not embrace originalism or the idea that separation of
powers should be maintained because the Founders enshrined this
principle in the Constitution, but its criticisms amounted to a
powerful practical defense of maintaining institutional boundaries
against legal realism's contention that judges should actively make
policy according to their preferences.
At the core of the legal process
school's critique was the notion of "polycentrism."
Whether confronting legislatures or administrative agencies,
according to this view, most policy problems are polycentric, which
at its simplest means that there are multiple parties with multiple
interests. In contrast, traditional litigation is binary. With
polycentric problems, as opposed to legal disputes about (for
instance) whether Party A violated a contract made with Party B,
there is no obvious solution because of the diffuse nature of the
interests involved. But the authority and legitimacy of courts
hinges on their ability to offer a reasoned argument in
justification of their decisions. Hence, the rational
decision-making process of courts will likely not lead to a
satisfactory policy because legal reasoning cannot lead to answers
for problems based on interests.
For example, budgetary decisions about
how much to spend on law enforcement, education, sewage facilities,
or road construction are poorly suited to judicial determination.
Instead, different groups have different interests, and the best
way to reach a decision is through a process of deliberation and
compromise in an elected body where the different interests can
sort themselves out. Instead of reasoning through to a decision,
one can at best make a prudential judgment after considering all of
the interests at stake.
The legal process school also fell out
of favor among legal scholars, largely because it cast doubt on the
efficaciousness of some of the favored judicial innovations of the
1960s and 1970s. Nevertheless, skepticism about judicial
policymaking persisted and grew into a more detailed critique that
hinged on three points: Courts have inadequate information, their
actions lead to harmful unintended consequences, and they must deal
with issues in isolation that are merged in the real world.
The Problem of Inadequate
While the adversarial legal process
creates incentives for each party to generate massive amounts of
information for judicial consumption, there are problems with both
the reliability of that information and the ability of judges to
process it. Judges are generalists and do not have specialized
training in the often highly technical areas of the physical and
social sciences that are central to the issues they are being asked
to resolve. Moreover, in many of these disputes, there is no
consensus within the scientific discipline, so it is unreasonable
to expect a judge to be the arbiter of these complex disputes.
Because they are so ill equipped,
judges must rely on expert witnesses who are invariably partisan
and therefore produce partisan information. Making effective public
policy, however, requires that those who make it have access to
accurate information and the ability to comprehend what the
information means. Lacking this ability, judges are left to the
partisan perspective of "experts."
Of course, legislators also receive
partisan and biased information from interest groups, but
legislatures are open institutions with specialized committees and
attendant staff, and they solicit and receive information from a
variety of interested parties. Also, if a legislator relies on
inaccurate information from an interest group, others have
incentives to expose those inaccuracies. In contrast, lawsuits are
largely closed processes and rely primarily on information produced
by the two parties involved in the litigation. If a biased expert
witness gives unreliable information, that fact will have little
effect on his or her ability to serve as a witness in a trial
An additional problem with the
information judges receive is that it is excessively theoretical
and insufficiently practical. For example, in disputes over
education policy, the expert witnesses are nearly always university
professors who generally have little experience actually teaching
children or managing schools. These activities, despite
the ambition or pretensions of schools of education, cannot be
codified in a manual. They require knowledge that comes only
with experience and practice. Therefore, in a judicial policymaking
regime, those who have the most practical experience and knowledge
necessary for effective implementation will have the least
influence on public policy.
The Problem of Unintended
Closely related to the problems created
by inadequate information are litigation's unintended consequences.
Both litigation and legislation produce unintended consequences,
but because litigation produces less reliable information, courts
know less about the potential second-order consequences of a
Moreover, litigation limits the ability
of the government to react to these unintended consequences. The
remedy in litigation is designed to restore a right or fulfill a
government obligation and thus cannot easily be modified. If a
legal proceeding has determined that the judge's ordered program is
the proper remedy for the proven violation, modifying the remedy
raises questions about the court's judgment and also raises the
appearance that the modification has deprived someone of a right
the initial judgment was intended to restore. If the legally
determined remedy is not working, perhaps the court's decision
about the violation was questionable as well.
Perhaps the most striking example of
judicial policymaking unleashing unintended consequences was in
Wyatt v. Stickney, a case involving the reform of Alabama's
mental health facilities. In this case, Judge Frank Johnson imposed
reforms that, because of the significance of the case, had the
effect of deinstitutionalizing thousands of seriously ill patients
across the country. Raymond Fowler, who was later director of the
American Psychological Association, illustrated this problem when
reflecting on what happened. "Certainly," he said, "one can't
imagine that Judge Johnson thought this would happen. But it's not
his job to try to predict what the effects of an order will be.
It's my understanding that he's obligated to determine what the
Constitution requires and then to order it."
The Problem of Isolated
This, then, leads to the final problem
of isolated issues. Courts can address policy problems only in a
"piecemeal" fashion. Because they can address only the legal
question before them, judges cannot consider other issues related
to the problem, which nevertheless might be essential for solving
it. For instance, poverty clearly affects educational performance,
but when considering whether a state adequately funds education, a
court must focus only on educational spending. It cannot ask
whether a change in welfare policy, low-income housing,
job-training programs, or crime-reduction efforts would be
necessary for improving educational outcomes in poorly performing
Not considering the context of
different policy problems breeds irrational public policy. Since
courts discuss policy in the language of rights and duties, they do
not take opportunity cost into account. If a right has been
violated, it must be remedied regardless of the cost, but rational
policymaking requires consideration of opportunity cost. One must
consider whether a dollar spent on policy X would be better spent
on policy Y. But Courts cannot consider whether a dollar or $2
billion spent to improve education would be better spent on roads,
police, prisons, public health, or nothing at all.
Are Courts Too Weak to Make
While the legal process school and its
descendants offered the most nuanced treatment of the shortcomings
of courts, Gerald Rosenberg offered a more recent and
attention-grabbing critique in The Hollow Hope. In
it, he argued that courts are generally powerless to create social
change, relying particularly on evidence from desegregation.
Brown v. Board of Education, he argued, had little
effect on desegregation. It was not until the Civil Rights Act of
1964 that desegregation really began. The courts influenced public
policy only when they had the support of other institutions.
Thus, Rosenberg highlighted another
constraint on judicial policymaking: primarily, the inability of
judges to compel others to take actions necessary for accomplishing
judicial goals. The courts, he argued, could overcome their
constrained position only under certain very narrow conditions.
There must be public support (or at least low levels of resistance
from the public), support in the other two branches of government,
and ample legal precedent in order for the courts to accomplish
Studying the courts' attacks on
segregation and enforcement of abortion rights on a national level,
Rosenberg found that the courts have been unable to bring about
social change on their own. In fact, he argued, the courts seem
quite powerless without the help of Congress and the executive
branch to bring about social change.
At first glance, Rosenberg's thesis
appears to confirm a constitutional truism. The fact that courts
need the support of other institutions is a testament to separation
of powers, federalism, and representative government. His argument
then provides a powerful verification of The Federalist.
However, while Rosenberg's evidence,
particularly on desegregation, is powerful and deployed
persuasively, there seems to be something incomplete in his
analysis. Primarily, he ignores the possibility that courts can
cause harm while trying to promote laudatory social programs. In
other words, the pursuit of worthy and admirable policies by courts
might actually lead to unintended and deleterious second-order
effects-obviously a significant consideration of the legal process
The effect of criticisms by the legal
process school and Rosenberg has been to severely undermine
academic faith in the effectiveness of judicial policymaking. In
fact, today, few scholars working on judicial policymaking, if any,
subscribe to the naïve optimism of legal realists. Instead,
what has been called the "new legal process" school accepts many of
the criticisms leveled against judicial policymaking but argues
that, in some situations, the courts might be the "least worst"
In essence, this school admits that the
courts do a poor job of making policy but then accuses legislatures
and executives of doing no better, and even worse.
Missouri v. Jenkins and Judicial
What, then, does Missouri v.
Jenkins tell us about the judiciary's capacity to make public
policy? First, we must note that it does not verify Rosenberg's
thesis from The Hollow Hope. In fact, at least in
Rosenberg's sense, the court hardly seemed constrained at all.
Citizens and other political institutions offered little
resistance, or at least little effective resistance, and were
easily compelled to follow the court. The court provided positive
incentives to induce compliance and imposed costs for not
complying. Finally, those responsible for implementing the court's
decisions, such as the school board, district administrators, and
court-appointed monitors, were willing to act and use the court to
leverage additional resources.
But when considering the legal process
school's critiques, Missouri v. Jenkins appears to be the
archetype of failure that they envisioned. It failed on all three
counts that are raised by the legal process school against judicial
- The court received biased and extravagantly incorrect
- The court's policies caused a storm of unintended consequences;
- The court isolated a large, complex area of public policy from
areas that are obviously related and essential to it.
However, while the case illustrates
many of these concerns, these concerns do not, by themselves,
explain why the court failed. Instead, the case shows that courts
are constrained by an additional and often neglected burden that is
built into their institutional structure: the constraints of
The list of examples of inadequate or
blatantly incorrect information given to Judge Clark by expert
witnesses is too vast to document here, so I will focus on just
First, during the 1970s, when
the district was under investigation by the Department of Health,
Education, and Welfare for being unlawfully segregated, it employed
expert witnesses who testified that the district was in full
compliance with the law. However, when the district supported the
case being brought against it in the 1980s, those same expert
witnesses changed their testimony and argued that the district was
in violation of the law. The district correctly expected that
losing would lead to an infusion of money.
The implications are obvious. Expert
witnesses will change their testimony to suit the desires of their
client. How can judges rely on information coming from the legal
equivalent of mercenaries?
Second, these experts believed
that they had formed a plan to save the school district, which was
mired in problems far beyond their comprehension. They advised
Judge Clark that if the court approved the remedial plan, the
average achievement of students in the KCMSD would rise to national
averages within four to five years.
These educational experts were steeped
in the "effective schools" movement, which had emerged in the
1970s. This movement claimed that successful schools possessed
certain "correlates," or common attributes, such as strong
instructional leadership, a strong sense of mission, demonstrated
effective instructional behaviors, high expectations for all
students, frequent monitoring of student achievement, and a safe
and orderly environment. But it is one thing to observe the rather
obvious point that strong instructional leadership makes for an
effective school and quite another to make strong instructional
leaders out of the very people who manifestly had been failing to
provide that leadership.
The expert witnesses believed that the
chronically failing teachers and principals of the KCMSD could be
transformed into effective ones if their recommendations were
adopted. Needless to say, nothing of the sort happened. In fact,
the plaintiff's attorney, Arthur Benson, later explained that no
one who crafted and implemented the remedial plan "understood the
problems of scaling something up to a district wide remedy."
The expert witnesses simply had no grounds for making such
One amateurish mistake made by the
court that a legislature undoubtedly would have considered more
carefully was an income tax surcharge on the income made within the
boundaries of the KCMSD. Judge Clark decided that while the state
of Missouri should pay for most of the remedial plan, the people of
Kansas City should bear some of the burden. Most of this was done
through his infamous property tax increases, which more than
doubled to pay for the plan, but he also wanted those who perhaps
had left the KCMSD to escape the schools but still worked within
the district to pay for the plan's cost.
The problem was that imposing a 1.5
percent tax on those who worked within the school district's
boundaries, while it sounded simple, was all but impossible for a
court to implement in practice. What if someone worked part of the
day in the KCMSD and part of the day elsewhere? What about a
savings account opened at a bank branch in the KCMSD by a person
who lived and worked outside of the district? What about those who
worked for companies headquartered within the KCMSD and whose
salary officially came from company headquarters but who worked
outside the district?
The difficulties were obvious to
everyone as soon as the court tried to impose the tax. In fact, the
difficulties were so obvious that it was clear that the tax would
eventually be struck down. (Incidentally, it was the only one of
Clark's major orders that was struck down by the Eighth
The most important unintended
consequence, however, was the alienation of Kansas City's black
community. Obviously, when Judge Clark lavished billions of dollars
on an overwhelmingly black school district, his goal was not to
anger the recipients of his largesse. Yet anger them he did. Most
important, and at the recommendation of the plaintiff's attorney,
he established a rigid quota system for the district's magnet
schools; but some schools were more desirable than others, and when
the predicted wave of suburban white students never came, the
result was to exclude black students from the district's most
The quota system required that for
every six black students, there had to be four white students, and
it was based on total enrollment in a school rather than on the
total number of seats. Hence, if a school had 1,000 seats and 240
white students, only 400 black students could attend that school.
Because the district could not come close to filling all of the
"white" seats in the magnet schools, many black children could not
attend the magnet school of their choice even though space was
available in the school. The system was so rigid that in the middle
and high schools, which were all magnet schools, the district
became concerned about being able to find space for all of its
black students. At one point, the district had over 7,000 black
students on waiting lists for magnet schools even though there were
thousands of available seats. Many black parents became so
exasperated that they decided to list their children as white in
order to enroll their children in a preferred magnet school.
Judge Clark refused to relax the quotas
until after the damage had been done. His rationale was that the
policy had been adopted by the court as an essential component of
the desegregation plan. By dropping the quota requirement, he would
admit that the plan was not working, that it was not going to work,
and that he had issued the wrong remedy. Hence, it is not
surprising that he stubbornly refused to relax the requirement
until after everyone else, including the plaintiff's attorney, had
recommended abandoning it. It is one thing for a legislature to
shift policy as more evidence is accumulated, but quite another for
a judge to change a ruling and the legal rights and obligations of
the parties involved.
The perception-and often the
reality-was that the plan made white students more valuable than
black students. The black community's dissatisfaction with the
court's remedial plan led to the creation of a black civic
association premised on opposition to the plan. This group created
a coalition that took over the school board, ended the magnet
school plan, and returned the district to neighborhood schools. Had
the plan actually achieved its objectives, it would be hard to
imagine significant opposition arising in the black community, but
when the plan failed to deliver on its promises, the black
community began to chafe under the burdens that the court was
forcing it to bear.
The court also could not confront the
problem that it faced in a comprehensive manner. The educational
failure of the KCMSD was only the symptom of many other illnesses
facing the district.
For instance, both the plaintiff's
attorney and the court-appointed monitor acknowledged that a
significant percentage of the district's teachers were woefully
unqualified, but this problem was related to a variety of other
problems including the quality of individuals attracted to teaching
in the KCMSD, the quality of programs in schools of education where
teachers are trained, and the difficulty in removing
underperforming teachers. Judge Clark's solution to these problems
was a dramatic increase in teachers' pay, but this did nothing to
clear out bad teachers and in fact provided incentives for them to
stay with the district.
Perhaps most important, Judge Clark was
powerless to improve what happened outside of school and in the
home. Each year, large numbers of the KCMSD's students changed
residences. Creating a bond between the school and the home was
remarkably difficult. The school district also had a policy of
allowing parents to promote their children to the next grade even
if the child did not fulfill the requirements to pass. Each year,
thousands of KCMSD students were promoted to the next grade under
this policy, reflecting a profound lack of parental interest in the
education of their children. But these problems were symptoms of
broader social problems related to family breakdown and urban
Inflexible Precedents and Judicial
The preceding problems certainly do not
speak well of the judiciary's ability to make public policy, but
they cannot explain why the court failed. It was clear that
Judge Clark had more than ample information indicating that the
plan would fail; that, while many consequences might have been
unintended, they were not unforeseeable; and that Judge Clark must
have known that that the educational problems in the KCMSD were
largely symptoms of broader problems.
Most tellingly, Judge Clark had surveys
conducted to determine what themes would be most attractive to
white private school and suburban parents. The results showed that
the magnet school themes were universally unpopular and that,
regardless of the theme, white parents would be largely unwilling
to send their children to the KCMSD. In short, his own evidence
showed that his plan would fail. Likewise, members of the black
community showed ambivalence and even antagonism toward the magnet
school plan from the beginning. They contended (correctly) that the
plan would actually damage the quality of education in the
Finally, the state of Missouri
presented substantial expert testimony that improving the quality
of education in the district would require improving the
educational atmosphere of students' homes. This was also the
contention of the black parents who mobilized to oppose the plan,
but Judge Clark repeatedly ignored their claims.
The question one must ask is why, in
the face of his own evidence, would Judge Clark assert that the
plan would in fact draw thousands of white students into the school
district? When one considers all of the evidence, the only
explanation that makes sense is that he was compelled to do so.
In general, Judge Clark was not an
activist judge, prone to imposing radical social experiments from
the bench. The reason we are left with is that he was following the
precedents from desegregation cases handed down by the Supreme
Court. The argument of Complex Justice is that this case
illustrates a distinction between mature and emergent
areas of judicial policymaking. Thus, to understand the
results of Missouri v. Jenkins, it is necessary to untangle
the doctrinal constraints placed on Judge Clark.
Judge Clark faced a set of Supreme
Court precedents that made sense in isolation but were confused as
a whole. In the late 1960s and early 1970s, an emboldened Supreme
Court began to strengthen its attack on segregation. The result of
three decisions-Green v. New Kent County School Board
(1968), Swann v. Charlotte-Mecklenburg
(1971), and Keyes v. Denver School
District (1973)-was to:
- Create an affirmative duty to desegregate,
- Allow statistical racial disparity as proof of
- Blur the distinction between de facto and de jure
- Extend the obligation to desegregate beyond the South.
But the Court retreated in Milliken
v. Bradley (1974), ruling that suburban school districts could
not be included in desegregation remedies unless they had actively
contributed to the violation. One can argue that each case on its
own made sense, but together they created a doctrinal Gordian knot.
How could judges create integration in overwhelmingly minority
school districts without compelling suburban participation?
The solution the courts hit upon was
voluntary desegregation plans built around magnet schools. Given
the precedents under which he was operating, Judge Clark believed
that he had to rule that the KCMSD was unconstitutionally
segregated, and he also had to try something that had not already
been shown to be a failure. Virtually the only option available was
a large magnet school plan combined with a complete physical
rehabilitation of the entire district.
Hence, the failure of Missouri v.
Jenkins was an institutional failure. It cannot be written off
as the excrescence of an idiosyncratic robed tyrant. There were
ample opportunities for higher courts to overturn Judge Clark, but
they did not do so until it was too late. The case shows that
doctrine matters for lower court judges. Supreme Court judges may,
as legal realism argues, feel free to ignore doctrine or to make it
up as they go along, but trial court judges, who face the ignominy
of being overruled, have incentives to follow precedent. Judge
Clark, who fastidiously followed the Court's precedents, was
largely going where the legal doctrines led him.
In short, judicial policymaking is not
only a problem in the one prominent case that garners substantial
attention, like Missouri v. Jenkins. Often, the ground is
already laid for these problems in less visible but no less
dangerous decisions. This lesson applies to court cases in policy
areas across the board, which shows the need for legislators to pay
close attention to developing court doctrines in order to preempt
and prevent the ill effects of judicial policymaking.
Desegregation was the judiciary's
largest, most concerted foray into public policy. That it ended in
Missouri v. Jenkins is telling. What started with ending the
obvious injustice of legally enforced segregation in Brown v.
Board of Education ended with petting zoos and programs in
Missouri v. Jenkins illustrates
that courts have immense power to command but often little power to
change. Judge Clark commanded that taxes be raised, and they were
raised. He ordered that buildings be built, and they were built.
But those commands did little to change the quality of education in
Kansas City. This reveals that courts are by nature unwieldy
institutions for designing and implementing public policy. As the
U.S. Supreme Court was muddling through desegregation in the early
1970s, it certainly could not have envisioned that its decisions
would create the catastrophe of Missouri v. Jenkins.
Similarly, when the Court grafted the
unwieldy and inaccurate metaphor of separation of church and state
onto the Establishment Clause in Everson v. Board of
Education (1947), the justices did not envision that it
would lead to the vertigo-inducing set of Establishment Clause
precedents we have today. In applying the metaphor, the Court
famously ruled in one case that it is constitutional for the
government to provide religious school pupils with books but ruled
in another that the government could not provide such pupils with
maps. This absurdity led to Senator Daniel
Moynihan's incredulous query about the status of atlases under the
Court's doctrine. Even more recently, in 2005, the Court decided
that it is constitutional to display the Ten Commandments on
public property in Van Orden v. Perry-except when it is
not, in McCreary County v. ACLU of Kentucky.
One would suspect that if the courts
are drawn into other areas of public policies, we will see similar
results. Today, interest groups are asking judges to approve their
favored policies on everything from global warming to the precise
amount of educational spending per pupil. Each of these and
countless other areas would require constant and clumsy judicial
oversight, with each decision creating a myriad of unintended
consequences that would only create further legal disputes
requiring judicial resolution.
We would be well advised to consider
Alexander Bickel's caution about looking to the courts to settle
our most divisive and complicated political issues: "In dealing
with problems of great magnitude and pervasive ramifications,
problems with complex roots and unpredictably multiplying
offshoots-in dealing with such problems, the society is best
allowed to develop its own strands out of its tradition."
This point was in fact unwittingly illustrated by Missouri v.
Jenkins. While the court forced unsound and bizarre experiments
on the children of Kansas City, educational common sense was
restored by the political action of minority parents.
For those who do not believe that the
idea of self-government has outlived its usefulness, this is as it
Joshua Dunn, Ph.D., is Assistant
Professor of Political Science at the University of
Colorado-Colorado Springs and the author of Complex Justice:
The Case of Missouri v. Jenkins (University of North Carolina
This essay was published September
 Alexander M. Bickel, The Supreme Court
and the Idea of Progress (New Haven: Yale University Press,
1978), p. 175.
 Missouri v.
Jenkins, 515 U.S. 70 (1995).
 Happily, not in the Heritage First
Principles series; see Charles R. Kesler, "What Separation of
Powers Means for Constitutional Government," Heritage Foundation
First Principles No. 17, December 17, 2007, http://www.heritage.org/Research/Thought/fp17.cfm.
 The Federalist No. 34, in The
Federalist, ed. Jacob E. Cooke (Hanover, N.H.: Wesleyan
University Press, 1961), p. 212.
 In 1989, the Supreme Court dealt with a
relatively minor issue concerning attorney's fees.
 Milliken v. Bradley,
418 U.S. 717 (1974). In Milliken, the Court struck down a
metropolitan-wide busing plan from Detroit.
 Roscoe Pound and Karl Llewellyn famously
disputed the claims of legal realism, leading many to overestimate
the disagreement between realism and Pound's "sociological"
jurisprudence. One is tempted to credit their dispute to the
narcissism of minor differences.
 Oliver Wendell Holmes, The Common
Law (Boston: Little, Brown, and Co., 1881; reprinted 2004 by
the Lawbook Exchange), p. 1.
 Karl N. Llewellen,
"The Constitution as an Institution," Columbia Law
Review, Vol. 34 (1934), pp. 1-40.
 "Courting Trouble,"
The Washington Post, March 9, 2003, p. T5.
 Griswold v.
Connecticut, 381 U.S. 479 (1965), 484.
 Abram Chayes, "The
Role of the Judge in Public Law Litigation," Harvard Law
Review, Vol. 89 (1976), p. 1307.
 Malcolm M. Feeley and
Edward L. Rubin, Judicial Policy Making and the Modern State:
How the Courts Reformed America's Prisons (New York: Cambridge
University Press, 1998), pp. 20, 345.
 Polycentrism was
outlined in an essay by Lon Fuller originally written in the 1950s
but published posthumously as "The Forms and Limits of
Adjudication," Harvard Law Review, Vol. 92 (1978), pp.
354-409. Fuller adapted the notion of polycentrism from the work of
 The most
comprehensive analysis of these problems is still Donald L.
Horowitz, The Courts and Social Policy (Washington, D.C.:
Brookings Institution, 1977).
 This problem is
highlighted in Nathan Glazer, "Should Judges Administer Social
Services?" The Public Interest, Vol. 50 (1978), pp.
 This point is a real-world
application of an argument made by Michael Oakeshott in
Rationalism and Politics (Indianapolis: Liberty Fund, 1991).
Oakeshott says that rationalist politics has two unfortunate
features: uniformity and perfection. "The essence of rationalism,"
he says, "is their combination." Ibid., p. 10. This is a
problem because political problems often cannot be pigeonholed into
uniform solutions, and the solutions often cannot be perfect. The
essence of the problem is that the rationalist privileges technical
knowledge over practical knowledge. Technical knowledge is that
which can be written down and read. Practical knowledge can be
learned only through action.
 Quoted in Jack Bass,
Taming the Storm (New York: Doubleday, 1993), p. 302.
 Gerald Rosenberg,
The Hollow Hope: Can Courts Bring About Social Change
(Chicago: University of Chicago Press, 1993).
 Brown v.
Board of Education of Topeka, 347 U.S. 483
 Joshua Dunn,
interview with Arthur Benson, Kansas City, Missouri, January 17,
 In emergent areas,
doctrines-if they exist-are likely to be more flexible, allowing
lower court judges some discretion when trying to solve the
problems of particular cases. However, the problems with judicial
policymaking identified by the legal process school are likely to
be in evidence in these areas. In mature areas, such as
desegregation by the time of Missouri v. Jenkins, there is a
heightened risk that precedents will ossify into a set of
inflexible and possibly contradictory rules ill-suited for
policymaking in the real political and social world.
 Green v.
County School Board of New Kent
County, 391 U.S. 430 (1968).
 Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1
 Keyes v.
Denver School District No. 1, 413 US 189
v. Board of Education, 330 U.S. 1 (1947).
 Board of Education
v. Allen, 392 U.S. 236 (1968) and Wolman v. Walter, 433
U.S. 229 (1977).
County v. ACLU of Kentucky, 545 U.S. 844
(2005); Van Orden v. Perry, 545 U.S. 677
 Bickel, The
Supreme Court and the Idea of Progress, p. 175.