For over sixty years, consent decrees1 have been a driving force of institutional reform, enabling federal court oversight of illegal, unconstitutional, and sometimes stubborn state inaction.2 Behind some of the most important civil rights victories have been advocates using consent decrees to cure cruel overcrowding in state prisons,3 segregation in public schools,4 and mistreatment of children at the hands of state agencies.5 But, as many of these consent decrees turn decades old, courts have begun to more seriously confront the ways in which the enforcement of these decrees may press upon principles of federalism.6 Recently, in Shakman v. Pritzker,7 the Seventh Circuit set forth a sweeping vision of how federalism principles should steer the analysis of whether to terminate a fifty-year-old consent decree. The far-reaching language illustrates the precarious future of consent decrees in light of the Supreme Court’s broader trend of articulating increasingly lenient standards for releasing state and local governments from federal oversight.
The “Governor of Illinois and units of local government” in Illinois have been subject to a series of consent decrees since 1972.8 These decrees prohibited them “from conditioning employment decisions on political patronage,”9 which had been a “chief characteristic of Chicago and Cook County politics for at least half a century.”10 Because this patronage system gave “officially favored candidates a massive, government-funded electioneering advantage over independent candidates and voters,”11 the plaintiffs in the original 1969 suit alleged that their First, Fifth, and Fourteenth Amendment rights were violated.12 The resulting Shakman consent decree, approved by the district court in 1972, contained injunctions effectively prohibiting the hiring or firing of any Illinois gov-ernment employee for any political reason or factor.13 Despite these restraints, political-hiring scandals still make waves decades later.14
In 2014, the same plaintiffs from the original 1969 action sought supplemental relief from the district court.15 They alleged that the Illinois Department of Transportation (IDOT) was filling “‘Staff Assistant’ positions based on political considerations” by first hiring people into positions exempt from the decree — positions where political considerations were allowed, like policymaking roles — and then transferring those people into nonexempt positions.16 An appointed special master concluded that the Governor’s Office had played a “key role” in political hiring,17 and, in response, the district court in 2019 approved a plan from the Governor’s Office outlining the process for converting positions from exempt to nonexempt and vice versa.18 In November 2019, the State proposed the implementation of a Comprehensive Employment Plan (CEP) and expressed its desire to exit the 1972 decree.19 Although significant parts of the CEP had not yet been implemented,20 the Governor moved in 2020 to vacate the 1972 consent decree.21
The district court denied the motion.22 Rule 60(b) of the Federal Rules of Civil Procedure asks whether the “objective of the original order has been achieved” and whether a durable remedy exists.23 The party seeking the discharge bears the burden of establishing that changed circumstances — meaning a significant change in either law or fact — warrant relief.24 The State argued that both were present.25 There was a change in law because, under “contemporary Article III standing doctrine,” the Plaintiffs now would have a far weaker standing claim, which is an “equitable consideration under the Rule 60(b) analysis.”26 And there was a change in fact because the recent establishment of a state monitoring body for hiring, the development of comprehensive remedial plans,27 and the lack of ongoing federal law violations28 had “render[ed] federal court oversight unnecessary.”29 The district court disagreed. First, it dispensed with the standing concerns by undertaking to focus its analysis of the entire case on the specific First Amendment interest that the consent decree strove to protect.30 The district court then concluded that the Governor had not shown that a durable remedy had been established.31 It found the implementation of the plan to be lacking,32 and “the mere existence . . . of oversight institutions” did not mitigate evidence of actual ongoing noncompliance with the consent decree,33 especially considering the “damning” examples of political discrimination within the past six years.34 The Governor then appealed.35
The Seventh Circuit reversed and remanded.36 Writing for the panel, Judge Scudder37 concluded that the Governor had satisfied the terms of the decree for two primary reasons.38 First, the “last significant violations of the decree seem to have occurred nearly a decade ago with the [IDOT] patronage scandal.”39 The court was also unaware of “any meaningful number of lawsuits alleging that the Governor . . . violated the constitutional rules” in question.40 Second, the Governor had instituted “several remedial measures in recent years . . . to minimize the risk of political patronage in employment practices.”41 That no constitutional violations arose during those years was evidence that the State’s reform measures were stable.42 And, contrary to the district court’s conclusions, strict adherence to the CEP was not required since it is more a “human resource manual than an articulation of the lines” between lawful and unlawful activity.43
Although the Seventh Circuit’s analysis “could [have] end[ed] there, the constitutional implications of a contrary conclusion warrant[ed] special emphasis.”44 To continue to hold the Governor to the decree would both “affront principles of federalism” and propel the district court beyond the “Case or Controversy” limitation of Article III.45 On federalism, because the Governor “swears an oath” to uphold the federal Constitution and to comply with the Supreme Court’s constitutional rulings, his failure to do so means litigation in state or federal court should proceed in the usual, case-by-case manner.46 “[E]xtended federal judicial oversight . . . , absent extraordinary circumstances, . . . should not serve as a primary means of ensuring” compliance of state officials with federal law.47 The court had an “equally difficult time identifying any remaining Case or Controversy.”48 Federal courts are not “indefinite institutional monitor[s],”49 and federal judges do not possess “‘some amorphous power to supervise the operations of government and reimagine from the ground up’ the employment practices of Illinois.”50
The Seventh Circuit’s constitutional reasoning was undoubtedly broad, using capacious language and drawing upon first principles of constitutional law to justify its retreat from the original Shakman decree. The unboundedness of its federalism reasoning undermines the very existence of consent decrees and is well-situated within a broader trend in which the Supreme Court amplifies federalism concerns while lowering the standard for state government defendants seeking terminations or modifications of judicially overseen remedies.51
Consent decrees can engender comprehensive remedial schemes that touch upon matters closely tied to state sovereignty, making them ripe for heightened federalism concerns.52 The limiting and legitimating factor of consent decrees is that they “must be directed to protecting federal interests.”53 Where that requirement is met, the Supreme Court has affirmed the broad remedial jurisdiction of the district courts in administering consent decrees.54 And, animated by the parties’ consent, the potentially wide-reaching scope of consent decrees can extend beyond what a court may be able to order upon a finding of liability.55
Though federal courts were eager to affirm and implement consent decrees in the 1960s, particularly with regard to strengthening civil rights,56 over time, the Supreme Court has become increasingly cognizant of the “sensitive federalism concerns” they raise.57 Horne v. Flores,58 the Court’s most recent consideration of the matter, represents a zenith for both hostility toward institutional-reform litigation and attention to the federalism concerns it raises.59 Besides suggesting for the first time60 that the state must be released from decrees once in compliance with federal law instead of the substantive objects of the decree61 — a lenient standard by some measures62 — the Court also expressed deep-seated skepticism toward institutional-reform injunctions in general.63 Because these injunctions “bind state and local officials to the policy preferences of their predecessors,” they may “improperly deprive future officials of their designated legislative and executive powers.”64 But implementation of these decrees “require[s] years, if not decades,”65 and taken on its explicit terms, this federalism concern throws into doubt whether decrees stretching past a couple of election cycles will be tolerated. What’s more, despite the fact that the Supreme Court has once used the state’s consent as a factor legitimizing the sometimes-extraordinary reach of consent decrees,66 this rationale weaponizes that very same consent by suggesting that it sanctions impermissible intrusion. In using such an expansive rationale, then, the Horne Court destabilized both an underlying premise and a legitimating force of consent decrees.
The Seventh Circuit’s analysis of federalism in Shakman was just as boundless as the democratic-accountability rationale was in Horne. It articulated a string of structural factors signaling a retrenchment from this consent decree in service of federalism’s ends. But these factors had little specific relevance to the case, and their conceivable scope threatens to subvert the very existence of consent decrees.
First, the court seemed to suggest that when the defendant is a state governor, it will tread with caution in enforcing a consent decree against her. It emphasized that the “Governor of Illinois is the state’s highest ranking elected official”67 but did not explain the specific relevance of the Governor’s institutional capacity to the question whether a decree should be terminated because either the judgment has been satisfied or “applying [the judgment] prospectively is no longer equitable.”68 Indeed, if the Governor’s position were important on its own, courts should move cautiously in enforcing any consent decree cabining the Governor’s capacities as Governor, even when she may be acting in contravention of federal law. The court continued that the Governor “swears an oath to uphold both the Illinois Constitution and the federal Constitution,” and that the federal Constitution presumes Governors “‘have a high degree of competence in deciding how best to discharge their governmental responsibilities,’ including how to effectuate constitutional compliance.”69 But an alleged lack of compliance with the Constitution or federal law is presumably the origin of the consent decree. There is tension here with the Supreme Court’s admonition that, as an instrument animated by parties’ consent and fashioned through negotiation,70 a decree should not be reinterpreted by district courts to encompass protection only for a “constitutional floor.”71
Second, the court suggested that consent decrees implicating core state functions presumptively threaten federalism principles. In its view, “[m]aking employment decisions is a meaningful part of the Governor’s responsibility and executive prerogative,”72 and a decree unduly impinges on that prerogative. But here, too, the court painted with a broad brush. Consent decrees frequently, and maybe even by their nature and function, involve core areas of state sovereignty and governance, yet this alone has never been sufficient to modify or terminate a consent decree.73 Indeed, if federalism concerns counsel caution where consent decrees implicate core state functions, then these concerns should arise at the consent decree’s creation, not only at its demise.
Third, and last, the court most obviously signaled a withdrawal from consent decrees as a whole when it insisted on “case-by-case” resolution of constitutional injuries, relinquishing federal judicial oversight to “extraordinary circumstances.”74 This assertion glossed over the fact that these decrees are products of negotiation and consent by the defendants, who had likely chosen, at the time, to avoid lengthy and costly litigation.75 And it also arguably fails to sufficiently respect that consent decrees were by definition born of the type of case-by-case adjudication that the court so acclaimed.
Though the Seventh Circuit appeared to consider its constitutional analysis auxiliary to its finding of satisfaction,76 it nevertheless proclaimed that these federalism principles “supply a concrete guidepost for resolving [the] case.”77 Indeed, the Seventh Circuit’s distaste for the longevity and perceived invasiveness of this consent decree spanned the length of the decision.78 But this distaste may have been misplaced: Governor Pritzker restricted communications with the court-appointed watchdog early in 2019,79 and, in June 2020, WBEZ Chicago reported that the Governor had hired thirty-five people from Illinois House Speaker Mike Madigan’s “clout list.”80
At its narrowest, Shakman signals that Horne’s wake may be larger than previously imagined.81 The hostility to institutional-reform litigation will likely not end soon, and this case puts forth several new considerations that will whittle away at the basis on which consent decrees stand. At its broadest, Shakman may embody the conservative paring back of judicial remedies that has made many substantive rights more vulnerable.82 Viewed this way, the expansive shadow cast by federalism over the legitimacy and enforcement of consent decrees not only has the potential to take a “potent tool” out of the public-interest litigant’s toolbox83 — it also threatens to unravel a key mechanism for ensuring that states abide by federal law at a time when they have demonstrated an increasing willingness to contravene it.84