After reading the more detailed brief, I suspect that Nathan's position against "judicial activism" was really crafted around the line of court decisions which established and delimited the unenumerated 'right to privacy': from Griswold v. Connecticut striking down of a state law prohibiting the sale of contraception to the establishment of a woman's right to reproductive freedom in Roe v. Wade to the retreat from those principles in Bowers v. Hardwick, when the Court floundered on the shoals of the issue of gay and lesbian rights. This is certainly Nathan's main line of argument,
following the work of Kristin Luker, among others.
But when Nathan looks at the area of civil rights law under the Warren Court, his argument is in effect -- he avoids using this specific language, given his general thesis -- that the Court did not go far enough in its judicial activism. It should have overturned not simply Plessy v. Ferguson, with its "separate but equal" doctrine, but also the Civil Rights Cases, which gutted the Reconstruction era Civil Rights Act of 1875. And it shrunk from following through on the implications of its Brown decision, he argues, when it refused to address the issue of desegregation in Northern suburbs and when it dodged the question of radical inequality in post-de jure segregated education. And on these counts, Nathan is quite right, IMHO. But far from supporting the argument he wants to make, these stances suggest quite the opposite -- that more judicial activism was needed. And Nathan's account does not take into consideration the element of political calculation that necessarily goes into Supreme Court rulings: given the extent of Southern racist resistance to Brown, the Court had to be very concerned about how far they could successfully continue down that path without fundamentally undermining their authority and ability to move the civil rights agenda. The Court's legacy here was much more one of a half-hearted or weak-kneed liberalism which failed to full through on its own convictions, than one of reaction.
That leaves two minor points Nathan makes, in addition to his major argument on the 'right to privacy', regarding the "reactionary legacy" of the Warren Court's "judicial activism." The first regards the 1970 Boys Market case, in which the Court overturned its own precedents in order to allow "an injunction against a strike during the life of a collective bargaining agreement." Virtually no one on LBO-Talk will recognize this case, as it plays a role in the field of labor law. The great setbacks in the field of labor law have been almost entirely legislative and regulative [executive branch] in nature, with the Court playing a rather minor role. The second regards the Court's [although this was already the Burger, not the Warren Court] identification of sex/gender as a "suspect classification" in the early 1930s, requiring legislatures to meet a higher standard of "non-discrimination" when they legislated with regard to the sex/gender. On the basis of a historical counter-factual, Nathan argues that the ERA would have had a better chance of passage if the Court had not used the due process clauses of the 5th and 14th Amendments to provide a lesser degree of constitutional protection against sex/gender discrimination. But, as others have already pointed out here, given that this is a counterfactual, it could just have easily turned out that there would have been _no_ protection against sex/gender discrimination.
Nathan's argument against Roe is also one which relies on counterfactuals, here assuming that the reproductive rights of women could have been won, at less of a political cost and with less resistance, through the legislative route, state by state. But once again, one can imagine a different scenario, which would have resulted in the loss of reproductive rights altogether. With only a limited beachhead in a few states such as NY, reproductive freedom was in a very precarious position. The entire national weight of the anti-abortion forces could be directed against those beachheads with little fear that legislatures throughout the South, the Rocky Mountains and great swaths of the mid-West was about to adopt similar measures. Roe v. Wade completely changed the terrain of reproductive freedom politics, forcing the anti-abortion forces to fight a national battle, state by state, in which it was seeking to undo the status quo.
In general, I think it is a mistake to view Supreme Court decisions as purely judicial actions and interventions, and then oppose them, in the form of an antinomy, to political actions and interventions, conceived as legislative action. Supreme Court decisions are also a form of political action and intervention, and reflect larger struggles and balance of forces in society. The Brown decision may have been more important for the energy and momentum it gave to the emerging civil rights movement, than for its legal effect alone.
Nathan treats the Warren Court as if it were an historical accident, the results of mistakes by President who chose justices far more liberal than they expected. But this is, IMHO, a too narrowly institutional way of looking at the Court. The Warren Court existed during a period of great social and political forment in the US, the last period of great progressive movements in our history. It could not but reflect those movements, as even the Court during the New Deal, stacked with conservatives, eventually had to do.
Leo Casey United Federation of Teachers 260 Park Avenue South New York, New York 10010-7272 (212-598-6869)
Power concedes nothing without a demand. It never has, and it never will. If there is no struggle, there is no progress. Those who profess to favor freedom, and yet deprecate agitation are men who want crops without plowing the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its waters. -- Frederick Douglass --
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