The judiciary in the administrative state
THE extraordinary activism of the federal courts in recent decades is often attributed to the proliferation of new claims against the state. As popular expectations of government have expanded, so “inevitably”-as many commentators assure us-have the responsibilities of the courts been multiplied and extended. And indeed the rhetoric of the welfare state seems to invite broad judicial involvement in public affairs. President Roosevelt described the New Deal as pointing beyond the promotion of the general welfare to the establishment of “a second Bill of Rights,” embracing “the right to a useful and remunerative job,” “the right of every family to a decent home,” “the right to adequate medical care” and “the right to a good education,” among others. What could be more natural than to have the judiciary protect and enforce these new rights, as it had always protected citizens’ rights to liberty and property?