>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.
Here Leo misses or at least downplays the point I was making, which was I argued that the Warren Court might have been more radical if it had not overturned Plessy - an act of judicial restraint by an earlier Court in that it upheld segregation laws in the states - but had rather overturned the precedent of the Civil Rights Cases, which were acts of extreme judicial activism.
Note that in my earlier post on precedents, I argued that when courts overturn precedents interpreting statutes, that is a form of judicial activism since the legislature always had the power to overturn the Court's interpretation and when they have not, there is a form of democratic acquiescence to the court's interpretation of the law. However, when a Court overturns a constitutional intervention of the past to restore power to legislatures to act, that is of a very different nature, since the legislature never had the power to overturn the court's earlier decision.
Just as the major Court decisions in 1937 that upheld the New Deal were acts of judicial restraint, even though they overturned previous Court constitutional precedents, if the Warren Court had overturned the Civil Rights Cases precedent, that would have been a similar restoration of democratic power and an act of judicial restraint, not judicial activism.
My argument in my paper is that the interventions by the Court around desegregation were mostly ineffectual, as shown by the incredible segregation maintained in public schools to this day. But by leaving the Civil Rights Cases on the books, it encouraged resistance to the 1964 Civil Rights Acts on constitutional grounds and forced their approval based on "commerce power" grounds rather than on 14th Amendment grounds.
Which left the precedent on the books for the Rehnquist Court to use the still good law of the Civil Rights Acts to strike down the ADA, Age Discrimination Act, and Violence Against Women Act based on that 19th century judicial activism precedent.
>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.
It also reflected the need for the US establishment to compete with the Soviet Union ideologically; Apartheid segregation in the South was an embarassment that most of the national elite was against, so the Court was not acting in defiance of the elite but as its handmaiden, taking the heat for decisions where Southern Democratic filibusters would block action - not a bad reason for the Court to act, but hardly one reflecting non-elite interests.
Yes, the social movements had their effect on the Court, but they had even greater effects on legislatures and Congress. My point is that it is far better for progressives to put their hopes and institutional allegiance with democratic legislatures than with unelected judges.
-- Nathan Newman