Date of this Version
It has been described as the worst state fiscal crisis since the end of World War II, with officials from across the country likening it to a “perfect storm,” “the Incredible Hulk of budget deficits,” and a “problem of historic proportions.” Beginning in 2001, almost every state experienced a deep fiscal crisis that placed funding of critical services in jeopardy and rendered many previously hallowed programs subject to draconian cuts, if not outright elimination. The fiscal crisis was particularly traumatic for court systems receiving all or a significant portion of their funding directly from state governments. In response to the fiscal crisis, courts curtailed operating hours, laid off employees, closed courthouses, eliminated funding for education programs, curtailed technology development, and abolished what were once thought to be inviolate, even sacrosanct programs. In some cases, state courts turned to local governments—who were facing their own budgetary problems—in an effort to “backfill” the reduction in state funds. In recent years, as state governments have replaced traditional local funding with state funding, the fate of the courts has become closely tied to the fiscal and political well-being of the state. Courts are being forced to compete for funding against more politically popular state services, such as education and public safety, or against seemingly out of control mandatory expenses, such as health care—often without much success. It would be easy to chalk the current fiscal crisis in the courts purely to state financing problems. Yet the financial crisis facing many state judiciaries is not simply a problem of cash flow or reduced revenues, and to paint it as such puts a far too simplistic spin on the matter. To be sure, a significant part of the crisis is rooted in economic factors. But to understand the true breadth of the problem, one must take account of the political factors affecting state court budgets. The crisis is defined by considerations that reflect not only money, but also the expanding influence of state judiciaries, offsetting concerns in some circles with “judicial activism,” and a seemingly growing and fundamental misunderstanding regarding the status and role of the courts in governing the nation. Donald L. Horowitz aptly described the current environment, which contrasts sharply with practices in England: The difference in the scope of judicial power in England and the United States should not be exaggerated. It is primarily a difference of emphasis. There have been periods of great passivity in America. But still the difference remains. What it has meant, in the main, is that American courts have been more open to new challenges, more willing to take on new tasks. This has encouraged others to push problems their way—so much so that no courts anywhere have greater responsibility for making public policy than the courts of the United States. Today, perhaps more so than at another time in the nation’s history, the courts are involved in policy making on such a broad range of matters that conflict with the other branches of government is inevitable and can involve budgetary considerations.