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November 16, 2005

Why the Supreme Court is Overrated

The Court has no guns and no spending power, so it's main ability is to tell people to stop-- if they listen.

Which means that the Court is a profoundly conservative institution, in the true sense of the word, meaning it can prevent social change but rarely is an instrument in supporting it.

Which is why the Court has most often been the enemy of progressives, since the Court had great ability to hamstring Reconstruction, thrown union leaders in jail, strike down minimum wage laws and otherwise hobble social progress-- but even when liberals were on the Supreme Court, it had little ability to make changes that elites wanted to resist.

Following up on my last post-- which is about Alito's resistance to the reapportionment decions which are honestly some of the only truly radical decisions in Supreme Court history in that they actually brought real social change -- I just wanted to emphasize what I meant by saying that the existence of Brown v. Board and Roe v. Wade had little effect on our society.

Very few schools actually desegregated until Congress passed the 1964 Civil Rights Act and began withholding money from segregated schools. The negative judgement of the Supreme Court was pretty useless without some more active power for social change -- which required actual money and the threat of withholding it to force reluctant school districts to desegregate.

Some will argue that Brown was symbolic, but it's worth remembering that there had already been plenty of symbolic national commitments to civil rights: the defense industries during World War II had been partially desegregated, the House of Representatives had repeatedly voted to abolish the poll tax in the 1940s, Truman had desegregated the army and adopted a strong civil rights plank in 1948.

So if all the civil rights movement needed was encouragement from national political leaders, they had that without Brown. Martin Luther King Jr. and others in the 1956 Montgomery busboycott specifically denied that Brown was the catalyst for their movement; folks in the city had been planning the boycott for a number of years, even before Brown, and had just been waiting for the right time to launch it. And against intuition, press coverage of Brown was actually pretty limited, even in most black publications. The murder of Emmet Till and outrage over it was a far larger story in the same period of time.

Civil rights was won in the streets of the South by the civil rights movement, not by a few white judges. It's an interesting phenemona of modern liberalism that it puts so much faith in the power of unelected judges and retrospectively gives so much less credit to the movement of the activists, as if they needed permission from white judges before they could have planned Montgomery or the lunch counter sit-ins.

As for Roe, the argument is made that while legal abortion had massively expanded across the country, it still was unavailable in many states until Roe was decided. This is partially true, but it's equally true that Roe created no "right to abortion", only a command that states not act to stop it. But there was no requirement that states provided women on Medicaid abortions and many hospitals in conservative states continued to refuse to perform abortions. Tens of thousands of people every year still had to go to another state for an abortion because of the lack of available facilities in their own states.

And as Ruth Bader Ginsburg has argued-- as have others -- the passage of Roe seemed to both stiffen the political resistance of abortion opponents and weaken activism by its supporters such that it's reasonable to question whether we might have won strong protection for abortion in many states through stronger political mobilization than we got through the half-hearted effects of Roe. If Roe had actually created a true "right" to abortion -- which hospitals, state governments and insurance companies were requireed to honor -- then there might be more of an argument for the social indispensability of the Supreme Court. But the decision in the end highlights the limited progressive power of the Supreme Court.

Which is not to say that the Supreme Court doesn't matter. It has a powerful ability to retard social progress and strike down legislation that seeks social change-- which it has demonstrated throughout history. Sam Alito has emphasized his fidelity to that tradition, in his commitments to property rights, striking down federal laws in the name of states rights, and opposing affirmative action laws. But in general, it is the negative power of the Supreme Court that progressives should be concentrating, not a wistful and semi-delusional view of the Court's supposed role in helping enact social change.

Posted by Nathan at November 16, 2005 12:45 PM