Vanderbilt Law Review

First Page



"The availability of judicial review," wrote Louis Jaffe in 1965, "is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid." In so writing, Jaffe suggested that the abstract beliefs that Americans have about the way government is supposed to work define the relationship between courts and the administrative state. It does not follow, logically, from the existence of administrative agencies that their actions must be policed by courts. instead, our beliefs about how public policy ought to be made and about which institutions are best at protecting our liberties, help dictate the relationship between the judiciary and the administrative state. Between the end of World War II and the beginning of the 1970s, these beliefs shifted dramatically. In the immediate postwar period, academics, political pundits, and other public intellectuals subscribed to a vision of policy making that I will call interest group pluralism. The state responded to battling interest groups that were capable of representing the interests of all Americans. By the early 1960s, interest group pluralism had fallen into disrepute. Interest groups, it was argued, were unrepresentative institutions that corrupted the political process. Instead, government had to be made participatory, genuinely inclusive of and responsive to the people. This Article suggests that this change altered administrative law. The contours of administrative law shifted to accommodate this new understanding of how government worked. Our psychological requirements changed and administrative law followed suit. This story of intellectual and legal change is situated within a rapidly growing body of scholarship about the rise of the administrative state. Part II of the Article examines that literature and places this Article within it. In particular, I argue that the existing historical literature ignores the role that the judiciary plays in the post-World War II administrative state. Political historians have enriched our understanding of postwar policy-making by demonstrating how agencies shape and transform the public policies that the legislature creates. In doing so, however, they have left out the crucial role that courts play in the administrative process. Just as agencies bring their own institutional concerns and ideologies to the policy-making process, so courts impose their own interests as they try to exercise control over the administrative state. Parts III and IV of this Article describe the nature of these interests. Part III examines changes in American political and intellectual culture that occurred between the end of World War II and the beginning of the 1970s. In Part III.A, I argue that during the immediate postwar period, Americans subscribed to a vision of politics known as interest group pluralism. Politicians simply implemented the desires of interest groups as they clashed and compromised in the political arena. Postwar thinkers applauded this system, naively suggesting that interest groups were capable of representing the interests of all Americans. This optimistic vision of American politics suggested a particular relationship between courts and the administrative state. Because the judiciary was the least pluralist branch of government, thinkers believed that it was inappropriate to charge it with a great deal of responsibility for overseeing administrative agencies. Consequently, they suggested that courts adopt a passive attitude towards judicial oversight of administration. Thus, courts created doctrines that facilitated legislative control of the administrative process, while minimizing judicial involvement.