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The Supreme Court, Democracy And Institutional Reform Litigation, Ross Sandler, David Schoenbrod

Articles & Chapters

In an unexpected portion of its unanimous opinion in Frew v. Hawkins, 540 U.S. 431 (2004), the SupremeCourt broke new ground on an important question involving consent decrees. The case began when Texas state officials invoked the Eleventh Amendment in their resistance to a federal Medicaid consent decree. TheCourt quickly disposed of that argument, but Justice Anthony Kennedy, writing for the unanimous Court,took the opportunity to forcefully state that consent decrees that intrude on the policy making prerogatives of state and local officials more than is necessary to protect rights undercut the effective functioning of elected state and local governments. …