State courts solve

Likewise, consider statutory cases like King v. Smith as studies of how courts can find in statutory welfare rights justice-inspired legislative supplementation of the constitutional catalogue. Unprepared, in the first instance, to declare the existence of a constitutional right to a social minimum (and so openly and irrevocably to constrain Congress), the Court nonetheless was prepared to expand and deepen the limited and qualified commitments Congress had made – and to prod Congress to craft future welfare legislation in keeping with the inclusive commitments the Court attributed to it. Similarly, with other social rights areas, a judiciary mindful of the constitutional dimensions of health care provision or of work and participation has in the past and could in the future nudge state or federal agencies to construe their statutory mandates in ways that lean toward inclusion or actual availability of work opportunities. But widening the circle of eligibility to, striking down exclusions from, and assuring against arbitrary deprivations of statutory social rights are not the only functions courts can and should perform. The facts that social rights are costly and that implementing them involves complex resource allocations have not prevented many well respected American state (as opposed to federal) courts from prodding legislatures to ensure that such rights receive a degree of legislative priority. State courts as diverse as New York’s, New Jersey’s, Texas’s and California’s have found credible ways to assess claims of glaring failure to fulfill constitutional mandates such as state constitutional rights to education or to housing equity. Mindful that implementing such rights involves resource allocations that should rest in the hands of democratically accountable officials, and also involves creation of new administrative structures and institutional strategies that courts are ill-equipped to design, US and other nations’ courts often have responded to these constraints by issuing judicial mandates to legislative, executive, or administrative officers to prepare, submit and carry out corrective plans. Hammering out such plans to vindicate social rights, in turn, entails political conflicts and accommodations. But constitutional-judicial intervention lends clout in these processes to relatively powerless constituencies, catalyzing new alliances among activists and attorneys, reform-minded lawmakers and bureaucrats, and judicial officials. Often, legislators otherwise reluctant or unwilling to vote in favour of increased education or housing funding prove ready to do so, once they can explain that ‘the courts made us do it’. Implementing any social right-inspired plan is also inevitably a protracted process, often entailing substantial trial and error and subject to social and bureaucratic impediments and inertia. Again, there is a virtue here to judicial involvement. Courts can insist on accountability and continued experimentation, even after legislative will flags or fragile bureaucratic coalitions unravel.