Posted by Eugene Volokh:
"Addicted to the Courts" -- a Reminder to Liberals, Libertarians, and
Conservatives:
NYU law professor Burt Neuborne -- who has been, among other things,
National Legal Director of the ACLU and Special Counsel to the NOW
Legal Defense and Education Fund -- [1]warns his fellow liberals in an
article in The Nation not to rely too much on victories in court. He
writes:
In recent years, many progressives appear to have lost the habit of
following up judicial victories with grassroots movements. Simply
put, too often the appeal to courts is treated as the end of the
political process, not its beginning. Three examples suffice.
The battle over abortion rights has never developed an effective
movement designed to explain why abortion is fundamentally fair. .
. . The progressive response [to pro-life criticism] was an
abstract defense of individual autonomy that winds up sounding
hedonistic, together with hairsplitting distinctions about when
human life begins. . . .
The gay rights movement, winner of a great judicial victory in
Lawrence v. Texas, when the Supreme Court invalidated criminal
sodomy laws, immediately redoubled its judicial bets by challenging
laws banning same-sex marriage. That may be good law, but it's
terrible politics. A grassroots movement designed to explain why
it's unfair to deny gays the ability to live together in stable
relationships would result in widespread support for legally
protected civil unions and pave the way for popular acceptance of
same-sex marriage. Without such a campaign, opponents have been
permitted an open shot to argue the unfairness of imposing unwanted
changes on a historic, religion-based institution.
Finally, defenders of the wall between church and state have
relentlessly pressed to remove religious imagery from the public
square without seeking to persuade the public that it's
fundamentally fair to do so. Legalistic arguments simply do not
convince many well-meaning people who feel cheated when their
religious symbols are banned. Nor do claims that onlookers are
somehow harmed merely by viewing such symbols, as long as everyone
has an equal right to have the symbol of his or her choice,
including symbols of atheism, displayed. We don't allow secular
speech to be banned because it offends onlookers. Why should
religious symbols be subject to "heckler's veto"? Thus, unlike
abortion and gay rights, where powerful fairness-based arguments
exist in defense of judicial decisions if only we would deploy
them, I'm not sure that in this case a persuasive fairness
rationale exists.
Progressives pay a heavy price for failing to defend the fairness
of our judicial victories at the grassroots. In the short run, we
weaken judicial precedents, leaving them exposed to criticism that
they are unfair and undemocratic--which ultimately may result in
the selection of judges willing to overturn them. In the long run,
we pay an even heavier price by galvanizing opponents bent on
freeing themselves from what they perceive as elitist disrespect
for democratic governance. The margin of victory in the 2004
presidential election may well have come from religious believers
in Ohio who voted against their economic self-interest to protest
judicial decisions that appeared to them to attack their belief
systems without good reason. . . .
One can argue about some of the details -- for instance, while I noted
the Ohio possibility myself shortly after the election, it's now far
from clear that this is indeed was the reason for Bush's margin of
victory in Ohio. (Plus, of course, while I'm not wild about all of the
Republicans' economic policy, I think that they are in the best
interests of most Americans, though obviously liberals like Neuborne
generally disagree.)
Nonetheless, the broader point, I think, is quite right, and it's one
I make to conservative and libertarian friends who put too much stock
in winning constitutional rights battles -- gun rights, campaign
speech rights, property rights -- in court. Why should we focus on
politics rather than litigation, they ask, when there's a fundamental
constitutional right at stake? Isn't the point of the Constitution to
secure certain principles from political attacks?
To quote the flag salute case, [2]West Virginia Bd. of Ed. v.
Barnette, wasn't "[t]he very purpose of a Bill of Rights . . . to
withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by
the courts"? Shouldn't it be the case that "[o]ne's right to life,
liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections"?
Well, maybe this is true in some world where the Bill of Rights
somehow implements itself, without the need to be interpreted and
enforced by real human beings, who -- being social creatures -- are
necessarily influenced by the views of those around whom they live,
those who taught them (whether teachers, parents, or others), and
those with whom they grew up. But in our world, it is at most an
aspiration, not an accurate description of political reality.
Winning in court is generally good -- but there's no substitute for
winning elections, and for persuading the public more broadly. Any
victory that's only a victory in court is not likely to last long, at
least on the important issues that are likely to remain in people's
minds. Neuborne is right to remind his side about this; I hope people
on my side (generally libertarians and, on many issues, conservatives)
remember this, too.
References
1. http://www.thenation.com/doc.mhtml?i=20050425&s=neuborne
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=319&invol=624
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