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> 1. because congressional legislation has been hard to attain, the target
has been the courts. this was really obvious in the case of civil rights
struggles. the NAACP started planning an assault on the courts in the
1930s [hastie, nabrit, houston, ransom, marshall]. ransom's strategy was
to start with higher education. their successes established the foundation
upon which to bring the brown v b.o.e. topeka to trial
After Brown v. Bd of Ed in 1954, the most important civil rights victories were won in the legislature, notably the Civil Rights Act of 1964 (Title VII), banning discrimination in employment on the basis oif race, sex, religion, or national origin; followed up by the 1991 Civil Rights Act, roilling back some bad Rehnquist court interpretations; the ADEA (age discrimination law), recently restricted to private employment by the courts; and the ADA (disability discrimination in both employment and public accommodation),a s well as Title IX, the Violence Against Women ACt, anda number of other statutes.
The Warren Court and toa lesser extent the Burger Court (which gave us disparate impact discrimination and upheld aff action in Johnson and Bakke) did a fair amount of good, but the key battles were legfslative. This was true all the way through the Reagan era. The fact is that it is a loeasier to influence thae legislature than the courts. It still is. Indeed, it's even harder today, with the courts packed with Reagan-Bush appointees.
> 2. we should all already know about roe v. wade, the legal assault there
was, at first, about ensuring that docs didn't get nailed for providing
abortions for the wealthy who could afford to encourage docs to give them
abortion by taking advantage of allowances for the "mental health" of the
mother.
But while the women's movement doubtless influenced the general climate, Roe was not a political victory in the sense that it was not won in anny direct way by politics. Blackmun and the rest of the Burger court were not decisively influenced, if they were influenceda t all, by any political action directed at their decisions.
> 3. more civil rights advances via executive order in the 60s
You are thinking of what? Nixon's approval of aff action in 1969?
> 4. the argument is that, b/c these weren't made through the process of a
long drawn out battle in congress, people didn't see them as legit.
We all know the argument. Your point is?
> 5. no one cares that the warren court is dead or that these aren't viable
strategies.
You better care that the Warren Court is dead. It really makes a difference in whether you want to put your efforts into a long march through the legal process versus an attempt to influence the legislature and the agencies through rabble rousing and electoral politics. The good guys are losing the key votes on the S.Ct. 5-4, 6-3, on a regular basis. I am not saying that there's no point in bringing important cases, as a lawyer I hope to try. But in the current situation, the important cases are those that try to prerserve what we have won rather than those which might extend our victoiries into new territory.
> what matters is that they delimited the range and scope of
what people thought possible and, especially, how the opposition has
responded: not only have they fought back through the courts, they've been
very vocal about their opposition and have done all they can claim a
majority as "on their side". and they can. so the consequences are what i
was talking about and, i presume, michael was also getting at this.
I have no idea what thsi means. It sounds as if you are saying, facts and the actual balance of forces doesn't matter, what matters is what people think, and even if they are wroing we have to acta s if they were right. In my book this would be mad, if indeed people did think that the most plausible avenue of chgange was through the courts rather than through legislation. But who thinks this? You, maybe? I'm a lawyer, and I don't think this.
>> 6 when we were fighting the nuke dump siting the same polarized politcs
got played out. one faction wanted to go the route of the law: their
strategy was to fight it in the courts by showing the siting to be
unconstitutional. the other faction said, "screw that! no politics as
usual for us. we've been down that road before" they preferred what i've
called a "politics of identity" strategy. but, of course, the people who
worked through the system actually "won" in the sense that the nuke never
got sited and, in large measure, because they did find the siting
unconstitutional, at the state level.
Well, it's not either/or. You can do things in court. As I say, I mean to try. Within the limits of the law, I do in fact do this. What to do in a particular situation is a tactical choice. However, the constraints of what the courts are like imposes limits on the tactical decision.
> otoh, the "winners" don't see how
the "ID politics" crowd managed to make things politically difficult and
made a scene with the media. the downside, of course, was that the ID
politics people still came out looking like idiot obstinate farmers
This was true in the civil rights days too. The NAACP was not pleased with the direct action movement.
--jks