The Public Interest

Black English and reluctant judges

Nathan Glazer

Winter 1981

PERHAPS the most common defense of the remarkable expansion of judicial control and supervision of state institutions-schools, prisons, mental hospitals, state schools for the retarded-that we have seen over the past half dozen years is that, in a word, “the system has failed.” The legislature has not appropriated enough money for effective education, or humane rehabilitation; the administrators have been callous and neglectful of human rights; the system-legislative and executive, the “majoritarian” branches, as they are called by constitutional lawyers-has not been as solicitous of constitutional and statutory rights as the courts will be, and thus the judges must act. “The courts must stand ready to intervene where no other forum is available for the vindication of fundamental rights-this is the high mission of the American judiciary” (Lawrence Tribe, “Seven Pluralist Fallacies in Defense of the Adversary Process-a Reply to Jus6ce Rehnquist,” 33 U. Miami Law Review 43, 56-57, 1978). One indeed gets the impression, reading the constitutional lawyers urging on the courts to a larger role in managing state institutions, that the judges act reluctantly, and only outrageous conditions and dear violations of constitutional fights force them to intervene: “Judges are not in control of their own agenda, but are compelled to confront grievances or claims they would otherwise prefer to ignore” (Owen M. Fiss, “The Supreme Court 1978 Term, Foreword: The Forms of Justice,” 93 Harvard Law Review 13, 1979).

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