The Public Interest

Should judges administer social services?

Nathan Glazer

Winter 1978

WHAT role should the judiciary play in overseeing, correcting, setting standards for, and directly administering social services? The question must be raised because, in recent years, judges have played an ever larger part in administering schools, mental hospitals, prisons, and other institutions. This is, of course, only one aspect of the extension of judicial power that has been the subject of a number of recent books (for example, Disaster by Decree, by Lino P. Graglia, and Government by Judiciary, by Raoul Berger) and many articles (for example, my article, “Towards an Imperial Judiciary,The Public Interest, Fall 1975). But it is a very distinctive aspect because it involves not only the establishment of a right, but the judiciary’s intervention into the administrative details of institutions in order to implement the enjoyment of that right. Many court decisions with far-reaching effects and grave political repercussions never involve judges in actual administration-for example, the rulings concerning prayer in the schools, abortion, the death penalty, and the use of testimony in criminal cases. Those decisions set a standard, and the existing agents of government-school officials, state health agencies, lower-court judges, prosecutors, and policemen-are expected to adhere to it without ongoing supervision. But there are now increasing numbers of judicial decisions that involve fairly elaborate provisions for supervision and administration, specify in detail how existing agents of government are to operate, and almost inevitably provide for continued oversight for an indeterminate period by the court.

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