Laws, made through the difficult, deliberative process of political compromise, inspired Otto von Bismarck’s now-famous remark: “Laws are like sausages: It is better not to see them being made.”
One wonders what simile the Iron Chancellor would have chosen for the compromise-free law fashioned outside of the political process by single-minded lawyers and activist judges today. Heather MacDonald describes how this illegitimate kind of law is fathered in a recent City Journal article, “What Good Is Pro Bono?”
“Recall that pro bono work gave New York City its unique, and uniquely tortured, court-ordered homeless system. It took shape when Sullivan & Cromwell associate Robert Hayes filed a massive pro bono suit claiming the city had a constitutional duty to provide shelter on demand. The city eventually settled the suit on terms agreeable to Hayes, terms that included court oversight of its every move regrading the homeless. It has never been free of homeless litigation since. . . .
“I asked Robert Hayes why he didn’t take his case for shelter on demand to the legislature, where it belongs. ‘Personally, I don’t like politics,’ he replied forthrightly. ‘It’s really hard.’
“Here, in just eight words, is the trouble with class-action and other litigation that seeks to create new rights–the very heart of contemporary pro bono publico work. Hayes is right: persuading a legislature to commit the billions that New York City has been forced to spend in irrational ways on the homeless would be a whole lot harder than persuading one judge to order those billions spent. The legislature has to balance competing demands for taxpayer dollars; a judge can order an elaborate shelter and housing system without having to trade off dollars for teachers, say, versus dollars for private apartments for drug addicts with AIDS. Big political litigation allows elite lawyers to make an end run around the political process.
“And, in doing so, they make others pay for their vision of the world, notes Francis Menton Jr., a partner at Willkie Farr & Gallagher. . . . ‘Millionaire attorneys have decided how society should work,’ he says, ‘and they use the courts to make the middle class pay for their schemes.'”