The case for needed legal reform: frivolous lawsuits are tieing up the courts, costing taxpayers millions, and making a mockery of the American legal system

USA Today (Society for the Advancement of Education), July, 1998 by Spencer Abraham

Once again, there is room for disagreement about the merits of this initiative, but not about its constitutionality. The CCRI is true, in both the letter and spirit of the law, to the equal protection clause. Worse yet, invalidating this kind of ballot initiative destroys the very foundation of the republic. It destroys local and state government. It destroys communities by taking disputes out of the realm of public debate and the democratic process. It destroys Americans' confidence that their votes count. Finally, it destroys constitutional limits on judicial power.

Restoring limits

The cases I have cited are not the only ones in which judicial activism should concern Americans. They are simply the most recent and striking examples of how the courts and, in many instances, lone judges have overruled the democratic process and twisted the Constitution to serve their own ends. How, then, can constitutional limits on judicial power be restored?

Let me address this question by examining one specific target area where reform already has begun to change the rules and the players in the judicial activism game. When I was elected to the Senate in 1994, I discovered that the Federal courts virtually had taken over, in whole or in part, the administration of prisons in 39 states. This included about 300 of the nation's largest penal institutions. In many jurisdictions, judicial decrees had led to skyrocketing costs, dramatically reduced punitive and deterrent effects of sentencing, and the early release of thousands of dangerous criminals.

Moreover, these decrees had precipitated an avalanche of frivolous prisoner lawsuits. Although the vast majority were found to be without merit (more than 99% in the Ninth Circuit and at least 95% in all jurisdictions nationwide), these lawsuits were taking up enormous amounts of time, money, and manpower-precious resources that better could be spent on incarcerating offenders. On the question of money alone, the National Association of Attorneys General estimated that the typical annual cost of prisoner lawsuits exceeded $80,000,000.

In 1995, 65,000 prisoner lawsuits were filed in Federal courts. That is more than the total number of criminal prosecutions in all Federal jurisdictions for the same year. In Michigan, for instance, prisons routinely had to be monitored to determine how warm the convicts' food was; how bright the cellblock lights were; whether there were electrical outlets in each cell; whether windows were inspected and up to code; whether the prisoners' hair was cut by licensed barbers; and whether air and water temperatures were "comfortable."

Such micromanagement might be understandable if a court had found that Michigan's prison system was in violation of the Constitution in any of these areas or if conditions were inhumane, but this was not the case. No court ever had found that Michigan's prisons had violated the Constitution or any Federal law in any of these areas. In addition, Michigan boasted the number-one training program for corrections officers. Its rate of prison violence was one of the lowest in the nation. It spent an average of $4,000 a year per prisoner for health care, including nearly $1,700 for mental health services. Nevertheless, complying with court orders, litigating over what they meant, and producing the reports necessary to keep individual judges satisfied had cost the state's taxpayers hundreds of millions of dollars over the course of a decade.