Page:United States Reports 502 OCT. TERM 1991.pdf/561

 502us2$26I 01-22-99 08:32:58 PAGES OPINPGT

Cite as: 502 U. S. 367 (1992)

403

Stevens, J., dissenting

fashion the remedy that it believes to be best.2 Similarly, a consent decree reflects the parties’ understanding of the best remedy, and, subject to judicial approval, the parties to a consent decree enjoy at least as broad discretion as the District Court in formulating the remedial decree. Cf. Firefighters v. Cleveland, 478 U. S. 501, 525–526 (1986). From respondents’ point of view, even though they had won their case, they might reasonably be prepared to surrender some of the relief to which they were unquestionably entitled—such as enforcing the deadline on closing the Charles Street Jail—in exchange for other benefits to be included in an appropriate remedy, even if each such benefit might not be constitutionally required. For example, an agreement on an exercise facility, a library, or an adequate place for worship might be approved by the court in a consent decree, even if each individual feature were not essential to the termination of the constitutional violation. In 2 It is the difficulty in determining prospectively which remedy is best that justifies a flexible standard of modification. This relationship between the characteristics of a remedial decree in structural reform litigation and the flexible standard of modification is explained in the passage that Judge Friendly found to be the best statement of the applicable legal standard: “ ‘The judge must search for the “best” remedy, but since his judgment must incorporate such open-ended considerations as effectiveness and fairness, and since the threat and constitutional value that occasions the intervention can never be defined with great precision, the intervention can never be defended with any certitude. It must always be open to revision, even without the strong showing traditionally required for modification of a decree, namely, that the first choice is causing grievous hardship. A revision is justified if the remedy is not working effectively or is unnecessarily burdensome.’ ” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F. 2d 956, 970 (CA2 1983) (quoting Fiss, The Supreme Court—1978 Term—Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 49 (1979)). The justification for modifying a consent decree is not that the decree did “too much,” but that in light of later circumstances, a modified remedy would better achieve the decree’s original goals.