<HTML><FONT FACE=arial,helvetica><FONT SIZE=2>Constitutional law may not be everyone's cup of tea on LBO-Talk, but it
<BR>fascinates me, as it lies at a particular nexus of politics and philosophy,
<BR>power and principle, that is nowhere else replicated in our intellectual
<BR>world. Nathan kindly sent me a copy of his paper on "Judicial Activism: The
<BR>Reactionary Legacy of the Warren Court," and I found it, like Nathan's
<BR>writing here, thoughtful and considered in the way it addresses important
<BR>political and legal issues. But, in an unusual reaction on my part, as I
<BR>generally have a great deal of political agreement with Nathan, I still found
<BR>myself in disagreement with the position he takes. The legacy of the Warrren
<BR>Court, and what is called its judicial activism, is, IMHO, a far more
<BR>complicated affair than could be summed up as "reactionary."
<BR>
<BR>After reading the more detailed brief, I suspect that Nathan's position
<BR>against "judicial activism" was really crafted around the line of court
<BR>decisions which established and delimited the unenumerated 'right to
<BR>privacy': from Griswold v. Connecticut striking down of a state law
<BR>prohibiting the sale of contraception to the establishment of a woman's right
<BR>to reproductive freedom in Roe v. Wade to the retreat from those principles
<BR>in Bowers v. Hardwick, when the Court floundered on the shoals of the issue
<BR>of gay and lesbian rights. This is certainly Nathan's main line of argument,
<BR> following the work of Kristin Luker, among others.
<BR>
<BR>But when Nathan looks at the area of civil rights law under the Warren Court,
<BR>his argument is in effect -- he avoids using this specific language, given
<BR>his general thesis -- that the Court did not go far enough in its judicial
<BR>activism. It should have overturned not simply Plessy v. Ferguson, with its
<BR>"separate but equal" doctrine, but also the Civil Rights Cases, which gutted
<BR>the Reconstruction era Civil Rights Act of 1875. And it shrunk from following
<BR>through on the implications of its Brown decision, he argues, when it refused
<BR>to address the issue of desegregation in Northern suburbs and when it dodged
<BR>the question of radical inequality in post-de jure segregated education. And
<BR>on these counts, Nathan is quite right, IMHO. But far from supporting the
<BR>argument he wants to make, these stances suggest quite the opposite -- that
<BR>more judicial activism was needed. And Nathan's account does not take into
<BR>consideration the element of political calculation that necessarily goes into
<BR>Supreme Court rulings: given the extent of Southern racist resistance to
<BR>Brown, the Court had to be very concerned about how far they could
<BR>successfully continue down that path without fundamentally undermining their
<BR>authority and ability to move the civil rights agenda. The Court's legacy
<BR>here was much more one of a half-hearted or weak-kneed liberalism which
<BR>failed to full through on its own convictions, than one of reaction.
<BR>
<BR>That leaves two minor points Nathan makes, in addition to his major argument
<BR>on the 'right to privacy', regarding the "reactionary legacy" of the Warren
<BR>Court's "judicial activism." The first regards the 1970 Boys Market case, in
<BR>which the Court overturned its own precedents in order to allow "an
<BR>injunction against a strike during the life of a collective bargaining
<BR>agreement." Virtually no one on LBO-Talk will recognize this case, as it
<BR>plays a role in the field of labor law. The great setbacks in the field of
<BR>labor law have been almost entirely legislative and regulative [executive
<BR>branch] in nature, with the Court playing a rather minor role. The second
<BR>regards the Court's [although this was already the Burger, not the Warren
<BR>Court] identification of sex/gender as a "suspect classification" in the
<BR>early 1930s, requiring legislatures to meet a higher standard of
<BR>"non-discrimination" when they legislated with regard to the sex/gender. On
<BR>the basis of a historical counter-factual, Nathan argues that the ERA would
<BR>have had a better chance of passage if the Court had not used the due process
<BR>clauses of the 5th and 14th Amendments to provide a lesser degree of
<BR>constitutional protection against sex/gender discrimination. But, as others
<BR>have already pointed out here, given that this is a counterfactual, it could
<BR>just have easily turned out that there would have been _no_ protection
<BR>against sex/gender discrimination.
<BR>
<BR>Nathan's argument against Roe is also one which relies on counterfactuals,
<BR>here assuming that the reproductive rights of women could have been won, at
<BR>less of a political cost and with less resistance, through the legislative
<BR>route, state by state. But once again, one can imagine a different scenario,
<BR>which would have resulted in the loss of reproductive rights altogether.
<BR>With only a limited beachhead in a few states such as NY, reproductive
<BR>freedom was in a very precarious position. The entire national weight of the
<BR>anti-abortion forces could be directed against those beachheads with little
<BR>fear that legislatures throughout the South, the Rocky Mountains and great
<BR>swaths of the mid-West was about to adopt similar measures. Roe v. Wade
<BR>completely changed the terrain of reproductive freedom politics, forcing the
<BR>anti-abortion forces to fight a national battle, state by state, in which it
<BR>was seeking to undo the status quo.
<BR>
<BR>In general, I think it is a mistake to view Supreme Court decisions as purely
<BR>judicial actions and interventions, and then oppose them, in the form of an
<BR>antinomy, to political actions and interventions, conceived as legislative
<BR>action. Supreme Court decisions are also a form of political action and
<BR>intervention, and reflect larger struggles and balance of forces in society.
<BR>The Brown decision may have been more important for the energy and momentum
<BR>it gave to the emerging civil rights movement, than for its legal effect
<BR>alone.
<BR>
<BR>Nathan treats the Warren Court as if it were an historical accident, the
<BR>results of mistakes by President who chose justices far more liberal than
<BR>they expected. But this is, IMHO, a too narrowly institutional way of looking
<BR>at the Court. The Warren Court existed during a period of great social and
<BR>political forment in the US, the last period of great progressive movements
<BR>in our history. It could not but reflect those movements, as even the Court
<BR>during the New Deal, stacked with conservatives, eventually had to do.
<BR>
<BR>Leo Casey
<BR>United Federation of Teachers
<BR>260 Park Avenue South
<BR>New York, New York 10010-7272 (212-598-6869)
<BR>
<BR>Power concedes nothing without a demand.
<BR>It never has, and it never will.
<BR>If there is no struggle, there is no progress.
<BR>Those who profess to favor freedom, and yet deprecate agitation are men who
<BR>want crops without plowing the ground. They want rain without thunder and
<BR>lightning. They want the ocean without the awful roar of its waters.
<BR><P ALIGN=CENTER>-- Frederick Douglass --
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