Norm Change or Judicial Decree? the Courts, the Public, and Welfare Reform

By Wax, Amy L. | Harvard Journal of Law & Public Policy, Winter 2009 | Go to article overview

Norm Change or Judicial Decree? the Courts, the Public, and Welfare Reform


Wax, Amy L., Harvard Journal of Law & Public Policy


The topic for this panel--the relationship between community values and judicial decision making--calls to mind Supreme Court cases on high-profile issues that have provoked strong criticism from the public. Decisions regarding church-state relations, (1) abortion, (2) free speech, (3) government regulation of property rights, (4) and affirmative action (5) are recent examples. This Essay addresses another example of tension between judicial decrees and popular attitudes. From the 1960s through the 1980s, key Supreme Court decisions addressing the administration of public welfare programs were at odds with the dominant values of much of the nation. For a number of reasons, that conflict has now largely been resolved. Therein lies a revealing story.

In 1996, after decades of experimental and pilot programs, Congress enacted a massive overhaul of the federal poverty-relief scheme. As part of a comprehensive welfare reform package sponsored by the Clinton Administration, the core federal cash-aid program, Aid for Families with Dependent Children (AFDC), was repealed and replaced with a work-based assistance program, Temporary Assistance for Needy Families (TANF). (6) These changes coincided with a significant decline in the role of the courts in shaping policy in the welfare area. Although the federal courts considered a range of important challenges to laws and regulations governing poverty relief and economic redistribution between the 1960s and the mid-1980s, they have been relatively uninvolved since that period and have not played a major role in sorting out issues arising from the welfare reform legislation. Moreover, despite widespread attention to growing economic and social inequality, (7) there is no evidence of a significant push to reenlist courts in efforts to address these problems. A visit to informational and advocacy websites on poverty issues bears out this abandonment of judicial avenues. (8) All told, there is little reason to believe that courts will significantly shape the law and policy of poor relief in the near future.

This picture represents a significant change. In the 1960s and 1970s, welfare-rights advocates were eager to use the courts to advance their agenda. Their main priorities at that time included establishing economic rights and invalidating restrictive conditions on entitlement to welfare benefits. (9) Poverty law courses began to appear in law school curricula around the country, and instructors became handmaidens of the activist welfare project. (10) The goal was to teach students how to litigate on behalf of the poor by arguing for expanded access to public assistance. On the theory that existing benefit conditions enshrined the race and class prejudices of a benighted majority, liberalizing poverty relief was regarded as an important rights-expanding project in keeping with a broader civil rights agenda. (11) As discussed more fully below, the results were decidedly mixed, with activists scoring some key victories while failing to achieve their broader goal of securely establishing positive economic rights.

Law students today are only dimly aware of the landmark decisions in the welfare area that received widespread attention at the time they were decided. Because issues surrounding public assistance do not currently preoccupy the courts, these earlier decisions are viewed as historical relics with little ongoing significance. That view is overly simplistic. Although the controversies surrounding the Supreme Court's welfare-rights decisions have largely abated, the trajectory of the courts' involvement in these issues sheds important light on the interplay between community norms and judicial decrees.

The courts' declining role in shaping the direction of social welfare law and policy is best understood as the culmination of a decades-long tug-of-war between community values--as expressed through legislative restrictions on poor relief programs--and the Supreme Court's vision of the proper ambit for those values in setting poor relief policies.

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Norm Change or Judicial Decree? the Courts, the Public, and Welfare Reform
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