Profs. David Schoenbrod and Ross Sandler are right to criticize judges who have overreached and are today effectively running prisons rather than simply remedying constitutional violations of prisoners’ rights (“By What Right Do Judges Run Prisons?” Rule of Law, Aug. 31). But they themselves tend toward overreaching when they argue that “judicial supervision of prisons cannot be squared with federalism, separation of powers or even traditional notions of the rule of law.”
“Judicial supervision,” after all, is akin to judicial‐review, whether of prisons, public schools, whatever. To the extent that courts remedy violations of constitutional rights, that is, they will be involved to some extent in “supervision,” Without getting into the details, the only question then is just what rights prisoners, students, etc. have, and what remedies for violations are sufficient, which is where the real argument is. Were we to leave that entirely to states and the political branches, prisoners could be fed once a week and students searched at will. That’s not how we do it as a matter of separation of powers.
Judges need to restrain themselves in such matters, to be sure, But they also need to derive a body of constitutional rights and remedies — whether under the Eighth or the 14 Amendment — that limits the discretion that properly belongs to states and the political branches. That’s where constitutional interpretation comes in. And that separates power properly.