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December 04, 2002

Sam H Response on Judicial Review

Sam Heldman jumps in on his site to argue that judicial activism does not have the problems for progressives that I outlined yesterday. I had argued that the Supreme Court overruling Bowers v. Hardwick could actually hurt gay rights.

I am going to be writing quite a bit more about this, since this whole issue of liberals fatal embrace of judicial activism is part of a broader writing project I have started. But let me start with the points Sam raises. His main responses are:

1) The rightwing does not suffer similar backlash from judicial activism in their favor, such as anti-affirmative action or property rights decisions.
2) Judicial activism like the race decisions in the 40s and 50s did far more good than harm. And more recent decisions like those defending the free speech of government workers had no bad consequences.
3) States like Alabama and Texas are unlikely to see gay rights passed anytime soon, so judicial decisions are needed.

Let's take each of these basic points in turn.

1) First, most conservative judicial activism reinforces the power of the already economically and politically powerful, so it's hardly surprising that their increased power from such decisions overwhelms any backlash from progressives hurt by it. Which goes to why judicial activism is such a bad thing for progressives overall. In the history of the United States, from early in the 19th century until 1937, most judicial activism was in support of conservative property interests, including the slavery decisions which were framed in terms of property rights. And because those decisions reinforced the power of the already powerful, conservative judicial activism was very effective. More recent conservative activism works similarly. If you already have dominant economic power, judicial activism can just reinforce your non-democratic power to manipulate the system.

The problem for progressives is that their ideal judicial activism supports the rights of those without already existing power. Which means that there are often ways for conservatives mobilized by those decisions to circumvent them when progressives have not yet developed the full majoritarian support to defend them.

Take the example of the civil liberties decisions protecting the rights of defendants decided by the Warren Court in the 60s. The goal seemed to be to end the arbitrary oppression of the criminal system against the poor and powerless.

But what is the result decades later? An explosion of the prison population due to an expanded list of crimes, especially tied to the drug war, that lead to a massive expansion of poor and minority folks in prison or controlled by the probation system. At a time of legislative gains for the poor through the Great Society, the Warren Court decisions fed a false sense that the system protected the guilty, helping feed a backlash of "anti-crime" legislation -- fed by powerful corporate interests benefiting from the prison industry - that has devastated poor communities.

2) What about Brown v. Board and other "good" decisions. Well, as I wrote in this column last summer, those early desegregation decisions were part of a massive national consensus supporting civil rights. That most liberals remember the backlash of Wallace and Bull Connor, not that national consensus for civil rights, is part of the damage I actually see from romancing judicial activism. The only reason civil rights legislation had not passed at the national level was because of the peculiar mechanics of the US Senate, where segregationists used antidemocratic filibusters to continually block progressive legislation. In the unique case where filibusters are blocking broadly popular legislation, there is undoubtedly less harm from judicial activism, since progressives therefore have the majority power to defend gains through blocking "backlash" responses. But few progressives take that lesson from Brown but instead jump from there to promoting judicial decisions that are deeply anti-majoritarian.

As for protecting the free speech of government workers, I have a lot to say about the baneful effects of the Supreme Court's extended "free speech" decisions beyond core defense of private political speech. Suffice to say that the current assaults on the rights of government employees and the conservative goal to privatize public services into the hands of private companies (whose employees have no protected free speech rights) is I think obviously part of exactly the conservative backlash response that is endemic in the wake of judicial activism.

3) Which brings us to defending gay rights in Texas and Alabama. It's worth noting that even in Texas, gay rights activists are winning. Check out this legislative page from OutTexas, which details victories on hate crimes and strong movement on ending educational discrimination against gays and, notably, in moving to repeal the Texas sodomy law.

But even where states don't act, the answer is federal legislation. Far more important than Brown were the 1964 and 1965 federal Civil Rights Acts in combating segregation and racism, formal and informal, in our society. Similarly, it will no doubt take federal legislation such as Employment NonDiscrimination Act (ENDA) which currently has about 194 co-sponsors in the House and 45 cosponsors in the Senate. And with this progress at both the national and state level based on building legislative power, judicial activism over largely unenforced sodomy laws could derail far more relevant and core gay rights initiatives.

The issue of national legislation raises a core reason why progressives should be ideologically assaulting judicial power at every turn. The greatest threat to progressive gains is the Supreme Court's increasing rampage to strike down national legislation in the name of states rights. On issues of discrimination, we have lost ground not because of legislative losses nationally, but because the Supreme Court has struck down large parts of the Americans with Disabilities Act, the Violence Against Women Act, and aspects of the original Civil Rights Act of 1964.

Judicial review, especially with the current Supreme Court but largely throughout our history, has not been the friend of freedom or equality in this country today, but it's worst enemy.

Progressives need to regain the majoritarian voice they once had in mobilizing for justice as a matter of popular will. The rhetoric of rights and judicial process is a crabbed, elitist turn for progressive thought in the last generation that is not only antidemocratic but ultimately wrongheaded and ineffective.

In the long run and even the middle run, any victories not won based on majority power are useless and likely to be short-lived. So forget judicial activism or putting ones hopes in the Rehnquist Court as a savior.

Posted by Nathan at December 4, 2002 09:15 AM

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I don't think in this case that the precedent can be considered strong enough to even refer to a reversal as 'activism'. Regardless of the 1986 decision its not as if the issue went away for 60 years, so I can't think of it as settled law but as part of an ongoing fight. I might agree with you in general but I think there is not the danger you imagine. That is of course, if people stand proudly and on principle, and speak out, rather than hiding behind the court.
Does this make sense or no?

Posted by: Seth Edenbaum at December 4, 2002 10:28 PM

As a self-styled conservative-leaning-libertarian strict constructionist, I applaud your principled stance. I don't necessarily agree with some of what you say, but you are absolutely correct that progressives shoot themselves in the foot by going through the courts instead of the legislatures. Look at Roe v. Wade: abortion was an extremely minor issue until then, because states could fashion abortion policy. When the SC court took that away from them, a backlash built among religious conservatives and helped lead them to an immense amount of electoral power--hardly a result progressives should be thankful for. Much smarter would have been to overturn or liberalize abortion regulations state by state. Not only would this have stinted any sort of pro-life movement, but it would've been much more democratic as well.

Posted by: Andrew at December 4, 2002 10:40 PM

To add to that, first off, "SC court" = redundant. Oops. Anyway, continuing on the abortion vein, also notice that since Roe v. Wade, we have had a tremendously divisive culture war that has been profoundly unhealthy for our democracy. Also, have you progressives noticed that since Roe v. Wade, your fight as been a defensive battle ever since 1973? When progressivism isn't about moving forward but rather trying to protect ground already gained at all costs (e.g., opposing a partial birth abortion ban because of slippery slope arguments), you should realize something is wrong.

Posted by: Andrew at December 4, 2002 10:44 PM

The problem with the states routine is look at legal recognition of same-sex marriages. Hawaiian courts broach the topic and we end up with the vile "Defense" of Marriage act overwhemingly passed and little-DOMA's passed in scores of states.

Now look at the case of Colorado's Ammendment 2. When that was overturned by the U.S.Supreme Court, that took the pressure off politicians having to push similar legislation in their states for their rabid-homophobe bases.

Sodomy laws are used to keep other gay rights legislation bottled up. Worse, they've been used to justify all sorts of heinous other legislation. I'm recalling the passage in the Montana state Senate a few years ago of a bill including gays and lesbians under Megan's law and to register at police stations so that their neighbors could be warned about their local "sexual deviant".

A turndown by the Supreme's on Bowers Jr. would be a hideous travesty and MUCH worse than an overturnning. IMHO

And as a gay man, I'm already sick and tired of the US being so retrograd on equal rights for gays and lesbians as compared to EVERY other western nationa in world.

Posted by: Doc at December 5, 2002 08:33 AM

I do understand the impulse to say that judicial review is a retardant to significant progressive gain at the ballot box; if we finally got everyone off his/her ass and voting according to reasonable long-term self-interest, there would be substantial "progressive" legislative/executive movement in this country, and it is likely that -- for the first decades of that new era, at least -- holdover judges would try to stem the tide of any serious change.

But in the present, and particularly in places like Alabama (which I know better than I do other places) judicial review/constitutional anti-majoritarianism has for decades been, and still is, a progressive force.

Plus which, don't think that by forswearing the use of judicial review towards progressive ends, we can embarrass conservatives into forswearing it too. Unilateral disarmament, in this field, won't work.

And to anybody who says "I'm for gay rights, but that overruling of Bowers v. Hardwick makes me so mad that I'm going to vote Republican because I don't believe in anti-majoritarian judicial review," the proper response is "why do you hate America so much? This type of judicial review has been part of our heritage for more than 200 years. We are not a pure majority-rules society. That's why we have a bill of rights. Founding fathers, and all that."

So what we need to do as progressives is (a) keep fighting the constitutional law fights, because we should be under no illusion that conservatives will stop pushing from their side; and (b) make it clear, when we don't like "conservative" judicial "activism", that what we're decrying is the SUBSTANTIVELY INCORRECT CONSTITUTIONAL DOCTRINE and WRONG RESULTS, rather than the exercise of judicial power.

Now I've got to go play in the snow.


Posted by: Sam Heldman at December 5, 2002 11:08 AM

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