For over sixty years, consent decrees^1×1. “A consent decree is a settlement agreement among parties to a litigation that is subsequently entered by a court.” Alan Effron, Note, Federalism and Federal Consent Decrees Against State Governmental Entities, 88 Colum. L. Rev. 1796, 1796 n.3 (1988). They are part private agreement and part judicial decree. Id. have been a driving force of institutional reform, enabling federal court oversight of illegal, unconstitutional, and sometimes stubborn state inaction.^2×2. See Jason Parkin, Aging Injunctions and the Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167, 168 (2017) (“[I]nstitutional reform litigation has transformed countless bureaucracies notorious for resisting change, including public school systems, social services agencies, correctional facilities, housing authorities, and police departments.”); id. at 172 (“Long-standing injunctions can be the source of ongoing, vigorous monitoring and enforcement efforts aimed at bringing a recalcitrant defendant into compliance with the law.”). Behind some of the most important civil rights victories have been advocates using consent decrees to cure cruel overcrowding in state prisons,^3×3. E.g., Duran v. Elrod, 760 F.2d 756, 757 (7th Cir. 1985). segregation in public schools,^4×4. E.g., Milliken v. Bradley, 433 U.S. 267, 269 (1977). and mistreatment of children at the hands of state agencies.^5×5. E.g., LaShawn A. ex rel. Moore v. Fenty, 701 F. Supp. 2d 84, 98–100, 115 (D.D.C. 2010). 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.^6×6. See, e.g., Parkin, supra note 2, at 183. Recently, in Shakman v. Pritzker,^7×7. 43 F.4th 723 (7th Cir. 2022). 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.^8×8. Id. at 724. These decrees prohibited them “from conditioning employment decisions on political patronage,”^9×9. Id. which had been a “chief characteristic of Chicago and Cook County politics for at least half a century.”^10×10. C. Richard Johnson, Successful Reform Litigation: The Shakman Patronage Case, 64 Chi.-Kent L. Rev. 479, 481 (1988). Because this patronage system gave “officially favored candidates a massive, government-funded electioneering advantage over independent candidates and voters,”^11×11. Id. at 483. the plaintiffs in the original 1969 suit alleged that their First, Fifth, and Fourteenth Amendment rights were violated.^12×12. Shakman, 43 F.4th at 725. The Supreme Court in 1976 and 1990 “affirm[ed] the unlawfulness of political patronage in government employment decisions” with respect to the First and Fourteenth Amendments. Id. at 725–26 (citing Elrod v. Burns, 427 U.S. 347, 356–59 (1976) (plurality opinion); Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990)); see also Elrod, 427 U.S. at 373. 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.^13×13. Johnson, supra note 10, at 487; see also id. at 484–85. This decree banned the Governor’s Office from “conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment” for current employees based on political reasons. Shakman v. Off. of the Governor, No. 69-CV-02145, 2021 WL 1222898, at *6 (N.D. Ill. Mar. 31, 2021) (emphasis omitted) (quoting Judgment ¶ E(1), at 4, Shakman v. Democratic Org. of Cook Cnty., 356 F. Supp. 1241 (1972) (No. 69 C 2145), reprinted in Governor’s Memorandum in Support of His Motion to Vacate the May 5, 1972 Consent Decree attach. 1, exhibit A, at 5, Shakman, No. 69-CV-02145, ECF No. 6946 [hereinafter Governor’s Memorandum]). Despite these restraints, political-hiring scandals still make waves decades later.^14×14. In 2006, one investigation resulted in four criminal convictions. Gretchen Ruethling, Chicago Officials Convicted in Patronage Arrangement, N.Y. Times (July 7, 2006), https://www.nytimes.com/2006/07/07/us/07chicago.html [https://perma.cc/UP9Y-U26N]. And recently, the Illinois Office of Executive Inspector General reported “multiple decree violations between 2003 and 2013.” Shakman, 43 F.4th at 726.

In 2014, the same plaintiffs from the original 1969 action sought supplemental relief from the district court.^15×15. Shakman, 2021 WL 1222898, at *2. 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.^16×16. Id. An appointed special master concluded that the Governor’s Office had played a “key role” in political hiring,^17×17. Id. at *3 (quoting Fifth Report of the Special Master at 5, Shakman, No. 69 C 2145 (N.D. Ill. Apr. 24, 2017), ECF No. 4988). 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.^18×18. Id. In November 2019, the State proposed the implementation of a Comprehensive Employment Plan (CEP) and expressed its desire to exit the 1972 decree.^19×19. Id. Although significant parts of the CEP had not yet been implemented,^20×20. Id. the Governor moved in 2020 to vacate the 1972 consent decree.^21×21. Id. at *1; see Governor’s Memorandum, supra note 13, at 42.

The district court denied the motion.^22×22. Shakman, 2021 WL 1222898, at *17. 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.^23×23. Id. at *4; see Fed. R. Civ. P. 60(b). The party seeking the discharge bears the burden of establishing that changed circumstances — meaning a significant change in either law or fact — warrant relief.^24×24. Shakman, 2021 WL 1222898, at *3 (citing Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)). The State argued that both were present.^25×25. Id. at *4–5. 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.”^26×26. Id. at *4. And there was a change in fact because the recent establishment of a state monitoring body for hiring, the development of comprehensive remedial plans,^27×27. Id. at *9. and the lack of ongoing federal law violations^28×28. Id. at *11. had “render[ed] federal court oversight unnecessary.”^29×29. Id. at *5. 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.^30×30. Id. The district court then concluded that the Governor had not shown that a durable remedy had been established.^31×31. Id. at *10. It found the implementation of the plan to be lacking,^32×32. Id. at *9. and “the mere existence . . . of oversight institutions” did not mitigate evidence of actual ongoing noncompliance with the consent decree,^33×33. Id. at *10. especially considering the “damning” examples of political discrimination within the past six years.^34×34. Id. at *11. The Governor then appealed.^35×35. Shakman, 43 F.4th at 728.

The Seventh Circuit reversed and remanded.^36×36. Id. at 732. Writing for the panel, Judge Scudder^37×37. Judge Scudder was joined by Judge Easterbrook. Judge Kanne passed away on June 16, 2022, and did not participate in deciding this case. Id. at 724 n.* (syllabus). concluded that the Governor had satisfied the terms of the decree for two primary reasons.^38×38. Id. at 728. First, the “last significant violations of the decree seem to have occurred nearly a decade ago with the [IDOT] patronage scandal.”^39×39. Id. The court was also unaware of “any meaningful number of lawsuits alleging that the Governor . . . violated the constitutional rules” in question.^40×40. Id. Second, the Governor had instituted “several remedial measures in recent years . . . to minimize the risk of political patronage in employment practices.”^41×41. Id. at 729. That no constitutional violations arose during those years was evidence that the State’s reform measures were stable.^42×42. Id. 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.^43×43. Id.

Although the Seventh Circuit’s analysis “could [have] end[ed] there, the constitutional implications of a contrary conclusion warrant[ed] special emphasis.”^44×44. Id. at 730. 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.^45×45. Id. 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.^46×46. Id. at 731. “[E]xtended federal judicial oversight . . . , absent extraordinary circumstances, . . . should not serve as a primary means of ensuring” compliance of state officials with federal law.^47×47. Id. The court had an “equally difficult time identifying any remaining Case or Controversy.”^48×48. Id. Federal courts are not “indefinite institutional monitor[s],”^49×49. Id. at 732. 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.”^50×50. Id. (internal quotation marks omitted in original) (quoting Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021)).

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.^51×51. See Parkin, supra note 2, at 185 (“As the debate over institutional reform litigation has unfolded in the pages of law reviews, the Supreme Court has expressed growing discomfort with this form of litigation.”).

Consent decrees can engender comprehensive remedial schemes that touch upon matters closely tied to state sovereignty, making them ripe for heightened federalism concerns.^52×52. See Horne v. Flores, 557 U.S. 433, 448 (2009). The limiting and legitimating factor of consent decrees is that they “must be directed to protecting federal interests.”^53×53. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). Where that requirement is met, the Supreme Court has affirmed the broad remedial jurisdiction of the district courts in administering consent decrees.^54×54. See Milliken v. Bradley, 433 U.S. 267, 282 (1977) (“[W]here . . . a constitutional violation has been found, the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the ‘condition that offends the Constitution.’” (internal quotation marks omitted) (quoting Milliken v. Bradley, 418 U.S. 717, 738 (1974))). 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.^55×55. Loc. No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525 (1986); see also Lloyd C. Anderson, Implementation of Consent Decrees in Structural Reform Litigation, 1986 U. Ill. L. Rev. 725, 726–27; Effron, supra note 1, at 1809.

Though federal courts were eager to affirm and implement consent decrees in the 1960s, particularly with regard to strengthening civil rights,^56×56. Anthony N.R. Zamora, Note, The Century Freeway Consent Decree, 62 S. Cal. L. Rev. 1805, 1808–09 (1989); see also Parkin, supra note 2, at 177–78. over time, the Supreme Court has become increasingly cognizant of the “sensitive federalism concerns” they raise.^57×57. Horne, 557 U.S. at 448. The Horne decision is the latest in a series of cases embodying increasingly pronounced skepticism toward institutional-reform injunctions. Parkin, supra note 2, at 170 & n.7. In 1992, the Supreme Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), noted that, within the Rule 60(b)(5) inquiry for the modification of consent decrees, the “principles of federalism and simple common sense require the [district] court to give significant weight to the views of . . . government officials.” Id. at 392 n.14. In doing so, however, the Court cautioned that consent decrees, as creatures of consensual negotiation by the state or local government, should not be enforced such that behavior conforms only to a “constitutional floor.” Id. at 391. The Court in 2004 gave federalism more sustained attention in Frew ex rel. Frew v. Hawkins, 540 U.S. 431, though it nonetheless affirmed the federal court’s power. Id. at 438. Texas had challenged a decree that imposed conditions “far beyond” the mandate of the Medicaid statute. Catherine Y. Kim, Changed Circumstances: The Federal Rules of Civil Procedure and the Future of Institutional Reform Litigation After Horne v. Flores, 46 U.C. Davis L. Rev. 1435, 1453 (2013). The Court noted that federalism required responsibility for discharging the state’s obligations to be “promptly” returned to the state once the decree’s “objects . . . have been attained.” Frew, 540 U.S. at 442. The concern for federalism is especially acute where prospective relief “mandates the State . . . to administer a significant federal program,” such that “state officials with front-line responsibility . . . [must] be given latitude and substantial discretion.” Id. Horne v. Flores,^58×58. 557 U.S. 433. 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.^59×59. See Kim, supra note 57, at 1455; Parkin, supra note 2, at 170, 185–86, 185 n.79; Elizabeth G. Porter, Pragmatism Rules, 101 Cornell L. Rev. 123, 140 (2015) (arguing that Horne “strongly signal[s] lower courts to get out of the business of institutional reform”). Though Horne technically considered a court-ordered injunction after finding that the defendant had violated the law, the boundary between such a decree and consent decrees is blurry. See Kim, supra note 57, at 1461. Horne itself cited and quoted from cases like Rufo and Frew in its core reasoning, both of which consider consent decrees. See, e.g., Horne, 557 U.S. at 449 (quoting Frew, 540 U.S. at 441) (pointing to Frew as the source of the democratic-accountability rationale); id. at 450 (quoting Rufo, 502 U.S. at 381). Shakman v. Pritzker similarly cited to Frew and Horne without distinction. See Shakman, 43 F.4th at 729–32 (quoting Horne, 557 U.S. at 447; Frew, 540 U.S. at 442) (citing Horne, 557 U.S. at 450); see also United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester County, 712 F.3d 761, 775 (2d Cir. 2013) (noting that Horne concerned the “modification[] of consent decrees” (citing Horne, 557 U.S. at 447–48)). Besides suggesting for the first time^60×60. Kim, supra note 57, at 1466; see id. at 1452–53, 1460. that the state must be released from decrees once in compliance with federal law instead of the substantive objects of the decree^61×61. Horne, 557 U.S. at 450–51, 454. Horne “lower[ed] the threshold for defendants to obtain a modification to, or the dissolution of, orders in long-lasting institutional reform cases.” Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1199 (10th Cir. 2018).  — a lenient standard by some measures^62×62. See Rufo, 502 U.S. at 391. One district court has further noted that this constitutional floor is “ill-defined.” Evans v. Fenty, 701 F. Supp. 2d 126, 165 (D.D.C. 2010); see Mark Kelley, Note, Saving 60(b)(5): The Future of Institutional Reform Litigation, 125 Yale L.J. 272, 298 (2015) (quoting Evans, 701 F. Supp. 2d at 165).  — the Court also expressed deep-seated skepticism toward institutional-reform injunctions in general.^63×63. Indeed, the Court cited prominent legal scholarship criticizing the existence or legitimacy of consent decrees in general. See Horne, 557 U.S. at 448–49. 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.”^64×64. Id. at 449 (quoting Frew, 540 U.S. at 441) (“Where ‘state and local officials . . . inherit overbroad or outdated consent decrees . . . ,’ they are constrained in their ability to fulfill their duties as democratically-elected officials.” (first omission in original) (quoting Am. Legis. Exch. Council, Resolution on the Federal Consent Decree Fairness Act (2006), reprinted in Brief on Behalf of the American Legislative Exchange Council and Certain Individual State Legislators as Amicus Curiae in Support of Petitioners app. at 1a, Horne (No. 08-294), 2009 WL 526204)); see also Frank H. Easterbrook, Justice and Contract in Consent Judgments, 1987 U. Chi. Legal F. 19, 34; Christopher Serkin, Public Entrenchment Through Private Law: Binding Local Governments, 78 U. Chi. L. Rev. 879, 897 (2011). But implementation of these decrees “require[s] years, if not decades,”^65×65. Parkin, supra note 2, at 171. 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,^66×66. See Rufo, 502 U.S. at 389; see also Loc. No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525 (1986). 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”^67×67. Shakman, 43 F.4th at 730. 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.”^68×68. Fed. R. Civ. P. 60(b)(5). 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.”^69×69. Shakman, 43 F.4th at 731 (quoting Frew, 540 U.S. at 442). 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,^70×70. See Int’l Ass’n of Firefighters, 478 U.S. at 525. a decree should not be reinterpreted by district courts to encompass protection only for a “constitutional floor.”^71×71. Rufo, 502 U.S. at 391.

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,”^72×72. Shakman, 43 F.4th at 730–31. 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.^73×73. Effron, supra note 1, at 1799. 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.”^74×74. Shakman, 43 F.4th at 731. 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.^75×75. Anderson, supra note 55, at 726–27; see also Int’l Ass’n of Firefighters, 478 U.S. at 525. 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,^76×76. See Shakman, 43 F.4th at 730. it nevertheless proclaimed that these federalism principles “supply a concrete guidepost for resolving [the] case.”^77×77. Id. at 731. Indeed, the Seventh Circuit’s distaste for the longevity and perceived invasiveness of this consent decree spanned the length of the decision.^78×78. In addition to the explicit constitutional analysis in section II.B of the opinion, the court alluded to its federalism concerns in section II.A, which analyzed whether the objects of the decree had been satisfied. See, e.g., id. at 726 (“What may have started with a federal court’s well-grounded injunction came to look more like indefinite federal judicial supervision of state employment practices.”); id. at 727 (“[W]e sounded serious concerns about the duration and seemingly never-ending nature of the Shakman decrees: ‘Do not let today’s result cloud the grave federalism concerns we have with the fact that the Clerk of Cook County has been under the thumb of a federal consent decree for the last 50 years[.]’ . . . ‘[This] should have raised red flags long ago.’” (quoting Shakman v. Clerk of Cook Cnty., 994 F.3d 832, 843 (7th Cir. 2021))); id. at 730 (“[A]llowing risk-driven reasoning to carry the day creates a most-concerning risk of its own — that the decree remains in place indefinitely.”). But this distaste may have been misplaced: Governor Pritzker restricted communications with the court-appointed watchdog early in 2019,^79×79. Dan Petrella, Court Monitor Says Anti-patronage Efforts Hampered by Gov. J.B. Pritzker’s “Unproductive” Restrictions on Communications with State Agencies, Chi. Trib. (Feb. 6, 2020, 9:00 PM), https://www.chicagotribune.com/politics/ct-illinois-patronage-report-20200207-kzcggbe3j5ah7gm4ka5junorjy-story.html [https://perma.cc/Y7ZD-BD3Q]. and, in June 2020, WBEZ Chicago reported that the Governor had hired thirty-five people from Illinois House Speaker Mike Madigan’s “clout list.”^80×80. Dan Mihalopoulos, Illinois Gov. JB Pritzker Hired 35 People from House Speaker Michael Madigan’s Clout List, WBEZ Chi. (June 15, 2020, 2:12 PM), https://www.wbez.org/stories/pritzker-madigan/809f86d3-4eff-413f-8c5c-cc3210a9ed9d [https://perma.cc/EP8H-46CL].

At its narrowest, Shakman signals that Horne’s wake may be larger than previously imagined.^81×81. See Parkin, supra note 2, at 206–07 (arguing that lower courts will have to discern whether Horne is applicable since the concerns in Horne will not be present in all institutional-reform cases). 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.^82×82. See, e.g., Aziz Z. Huq, The Collapse of Constitutional Remedies 3–5 (2021). 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 toolbox^83×83. Zamora, supra note 56, at 1808; see Parkin, supra note 2, at 173 (noting that developments in the termination of consent decrees “affect the ability of new plaintiffs to obtain new injunctions”).  — 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.^84×84. See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 545–46 (2021) (Sotomayor, J., concurring in the judgment in part and dissenting in part).