I never said it's just about backlash. It's also that courts are wayward elite institutions that will turn on you and depending on the courts often means demobilizing broader political alliances that can defend gains over the long term. What amazes me is that gay rights defenders of the courts completely ignore the Dale decision, which struck down New Jersey's law banning discrimination against gays by the Boy Scouts. Here you had a state protecting gay rights and the Court stepped into to overturn the law and protect the bigots. And now, no democratic decision can stop discrimination by the Boy Scouts because of the Supreme Court.
I wrote a series of blog posts on this and around the Lawrence decisions, so let me just repost them to lay out my positions in a more coherent way. The original posts are at:
http://www.nathannewman.org/log/archives/000604.shtml http://www.nathannewman.org/log/archives/000606.shtml http://www.nathannewman.org/log/archives/000983.shtml http://www.nathannewman.org/log/archives/001563.shtml
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Why Supremes Should Keep Antigay Ruling
Back in 1986, in a case called Bowers v. Hardwick, the Supreme Court upheld as constitutional a law that made gay sex illegal in Georgia. The Supreme Court has just taken a case that will allow them to overturn that precedent.
I hope that they don't.
Okay, this one is going to generate a lot of the same energy my approval of the Supreme Court school voucher decision did back in June, but it goes to a fundamental argument I have.
Activist decisions by courts rarely help progressives. Judicial activism achieves very little but encourages electoral backlashes that erase far more gains.
The fact is that today, whereas half the states had laws similar to Georgia in 1986, only 13 states still have such laws on the books. This is an issue that is being won legislatively and where the laws are rarely enforced even in most states where the laws are still on the books. In Dade County, where the first major gay civil rights ordinance was voted down back in the 1970s, a similar ordinance was approved at the ballot this past year. Civil unions and benefits for domestic partners are being approved by state legislatures.
The antigay activists are losing their majority at the ballot box and the message is that they are a moral minority.
But if the Court intervenes, the Right will be able to position themselves as "defenders of democratic choice" as if they would prevail but for an undemocratic court decision. And they will benefit from a backlash in attacking other gay issues, where they were losing before.
Look what happened with gay marriage. There was no rightwing legislative agenda to ban it before a Hawaiian Supreme Court upheld it as a constitutional right in that state. Suddenly states across the country rushed to ban something that was not even an active issue previously.
And the fact that the bans were put in state constitutions will make it just that much harder to pass gay marriage when we are able to build majorities to support the idea in coming years, because now we will need to pass new constitutional amendments rather than just majority legislation.
The Hawaii court decision gained little, since there are ways to override court decisions, but the backlash cost the movement probably years in pushing forward full gay marriage.
That all said, there is a more serious issue of equal protection in the Kansas law being looked at by the Court. I wouldn't be deviating from my anti-court activism position if the equal protection violation was not so henious in this particiular case, but it is. However, I never liked the "right to privacy" argument -- either by advocates in Bower or in Roe v. Wade -- but there is a stronger gender equal protection argument where penalties are higher for the same act done with a man rather than a woman.
In the Kansas case, heterosexual oral sex with a minor is given a lower sentence than homosexual oral sex with a minor. Given constitutional equal protection arguments against gender bias, that seems a far better basis to knock out such differential application of criminal laws.
Of course, the unsteady arguments for equal protection based on gender under the Constitution derives from the lack of an Equal Rights Amendment (ERA). And why did the ERA fail? At least one reason is the Supreme Court jumping in with partial (but not full) constitutional protection for women in some early 1970s cases. Once some protection was passed, it lessened the energy supporting the ERA, so a short-term Supreme Court victory because a far larger constitutional defeat. This interference with a mass democratic mobilization around the ERA was not unremarked by the Court members themselves. As Justice Powell argued in his concurrence in a key early 70s case called Frontiero, which established some of the basic protections for women under the Constitution.:
The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States...By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.
And partly because the Court acted, what looked to be a rapid and overwhelming approval of the ERA became a defeat as the rightwing rallied against what was seen as antidemocratic Court decisions.
Progressives are actually winning on gay rights issues, slowly at times but surely. A Court decision broadly overturning Bowers will actually change little substantively, but could cost progressives politically in a host of ways.
It's hard to turn down a short-term win on a matter of justice through the courts, which is why both Right and Left can't help praising judicial activism that helps them. But it rarely means anything without majoritarian support in the long-term. And if you have majority support for your issues, you don't need the courts.
BTW I think the Court should avoid judicial activism on the affirmative action case before it as well, and leave the democratically approved diversity program in place.
Check out my article from the Bush v. Gore aftermath on impeaching the Supreme Court for more on this general argument.
Sam H Response on Judicial Review
Sam Heldman jumps in on his site to argue that judicial activism does not have the problems for progressives that I outlined yesterday. I had argued that the Supreme Court overruling Bowers v. Hardwick could actually hurt gay rights.
I am going to be writing quite a bit more about this, since this whole issue of liberals fatal embrace of judicial activism is part of a broader writing project I have started. But let me start with the points Sam raises. His main responses are:
1) The rightwing does not suffer similar backlash from judicial activism in their favor, such as anti-affirmative action or property rights decisions.
2) Judicial activism like the race decisions in the 40s and 50s did far more good than harm. And more recent decisions like those defending the free speech of government workers had no bad consequences.
3) States like Alabama and Texas are unlikely to see gay rights passed anytime soon, so judicial decisions are needed.
Let's take each of these basic points in turn.
1) First, most conservative judicial activism reinforces the power of the already economically and politically powerful, so it's hardly surprising that their increased power from such decisions overwhelms any backlash from progressives hurt by it. Which goes to why judicial activism is such a bad thing for progressives overall. In the history of the United States, from early in the 19th century until 1937, most judicial activism was in support of conservative property interests, including the slavery decisions which were framed in terms of property rights. And because those decisions reinforced the power of the already powerful, conservative judicial activism was very effective. More recent conservative activism works similarly. If you already have dominant economic power, judicial activism can just reinforce your non-democratic power to manipulate the system.
The problem for progressives is that their ideal judicial activism supports the rights of those without already existing power. Which means that there are often ways for conservatives mobilized by those decisions to circumvent them when progressives have not yet developed the full majoritarian support to defend them.
Take the example of the civil liberties decisions protecting the rights of defendants decided by the Warren Court in the 60s. The goal seemed to be to end the arbitrary oppression of the criminal system against the poor and powerless.
But what is the result decades later? An explosion of the prison population due to an expanded list of crimes, especially tied to the drug war, that lead to a massive expansion of poor and minority folks in prison or controlled by the probation system. At a time of legislative gains for the poor through the Great Society, the Warren Court decisions fed a false sense that the system protected the guilty, helping feed a backlash of "anti-crime" legislation -- fed by powerful corporate interests benefiting from the prison industry - that has devastated poor communities.
2) What about Brown v. Board and other "good" decisions. Well, as I wrote in this column last summer, those early desegregation decisions were part of a massive national consensus supporting civil rights. That most liberals remember the backlash of Wallace and Bull Connor, not that national consensus for civil rights, is part of the damage I actually see from romancing judicial activism. The only reason civil rights legislation had not passed at the national level was because of the peculiar mechanics of the US Senate, where segregationists used antidemocratic filibusters to continually block progressive legislation. In the unique case where filibusters are blocking broadly popular legislation, there is undoubtedly less harm from judicial activism, since progressives therefore have the majority power to defend gains through blocking "backlash" responses. But few progressives take that lesson from Brown but instead jump from there to promoting judicial decisions that are deeply anti-majoritarian.
As for protecting the free speech of government workers, I have a lot to say about the baneful effects of the Supreme Court's extended "free speech" decisions beyond core defense of private political speech. Suffice to say that the current assaults on the rights of government employees and the conservative goal to privatize public services into the hands of private companies (whose employees have no protected free speech rights) is I think obviously part of exactly the conservative backlash response that is endemic in the wake of judicial activism.
3) Which brings us to defending gay rights in Texas and Alabama. It's worth noting that even in Texas, gay rights activists are winning. Check out this legislative page from OutTexas, which details victories on hate crimes and strong movement on ending educational discrimination against gays and, notably, in moving to repeal the Texas sodomy law.
But even where states don't act, the answer is federal legislation. Far more important than Brown were the 1964 and 1965 federal Civil Rights Acts in combating segregation and racism, formal and informal, in our society. Similarly, it will no doubt take federal legislation such as Employment NonDiscrimination Act (ENDA) which currently has about 194 co-sponsors in the House and 45 cosponsors in the Senate. And with this progress at both the national and state level based on building legislative power, judicial activism over largely unenforced sodomy laws could derail far more relevant and core gay rights initiatives.
The issue of national legislation raises a core reason why progressives should be ideologically assaulting judicial power at every turn. The greatest threat to progressive gains is the Supreme Court's increasing rampage to strike down national legislation in the name of states rights. On issues of discrimination, we have lost ground not because of legislative losses nationally, but because the Supreme Court has struck down large parts of the Americans with Disabilities Act, the Violence Against Women Act, and aspects of the original Civil Rights Act of 1964.
Judicial review, especially with the current Supreme Court but largely throughout our history, has not been the friend of freedom or equality in this country today, but it's worst enemy.
Progressives need to regain the majoritarian voice they once had in mobilizing for justice as a matter of popular will. The rhetoric of rights and judicial process is a crabbed, elitist turn for progressive thought in the last generation that is not only antidemocratic but ultimately wrongheaded and ineffective.
In the long run and even the middle run, any victories not won based on majority power are useless and likely to be short-lived. So forget judicial activism or putting ones hopes in the Rehnquist Court as a savior.
Why Judicial Review is Bad
One more round on my personal hobbyhorse, but I think it's crucial for progressives to recognize why their attachment to judicial power is so completely misguided. So here are some comments and my responses from my recent Consistency on Gay Rights? post:
Noting that I had worked hard in organizing against the anti-immigrant Prop 187 initiative in California, largely struck down by the federal courts, Josh asked "How does your theory of judicial restraint play out in Prop 187?" My answer:
How does Prop 187 organizing fit into my theory? Very directly. The best response to Prop 187 was not litigation but massive voter registration, legalization campaigns, and political pressure that tossed Pete Wilson out of office, elected a latino speaker of the assembly, latino lieutenant governor, and forced passage of a range of pro-immigrant legislation, such as banning "english-only" policies in the workplace. The legislature voted to give driver's license to undocumented workers last year (which was vetoed by Davis), so en those votes on pretty controversial issues, I'm quite confident that the draconian Prop 187 provisions would have been repealed.
And arguably, the backlash in the pro-immigrant direction might have been even stronger if Prop 187 had actually been implemented fully. So the price of judicial "massaging" of bad legislation often means less counter-mobilization to get rid of those who originally promoted it.
Henry then asked if the Courts don't review laws for their constitutionality, what role do they have? My answer:
What is the role of the courts? To interpret laws passed by Congress, not to overturn them. That's what courts do most of the time. Constitutional cases are a rather small part of their workload, even if it's the one that gets the most media attention.
Why should unelected judges be able to second-guess democratic decisions? What reason is there to believe that judges will be more compassionate or more protective of rights than elected leaders?
Then Andy got to the nub of defenders of judicial review: "You don't see the value of having judicially and legally trained people with aren't worried about bowing to any power bases and who see allegiance to Constitutional principles first and foremost as a check against runaway public opinion and power-hungry legislators sacrificing the interests of an unpopular few in order to get the votes of the many?" My lengthier answer:
First, the Supreme Court doesn't make its decisions based on "constitutional scholarship", since all members have fine training, yet seem to come to diametrically opposite conclusions on a regular basis-- note the series of 5-4 voting splits in recent years.
I see little value in appointed ideologues imposing their views on the population for the limits of their lifespan. Why not just hand our whole government to benevolent dictators if "independence" is such a value?
The Supreme Court has as often destroyed progressive rights as protected them. They promoted slavery in the pre-Civil War Dred Scott decision, obliterated civil rights laws during the Reconstruction era and its aftermath, obliterated labor laws protecting labor rights in the early 20th century, and now with the Rehnquist Court have repeatedly struck down rights for the disabled, religious freedom, age discrimination and a variety of other areas in deference to "states rights."
So no, I see little value for individual or civil rights in letting lose the biases of court members.
Where is the check and balance on their decisions?
Amending the Constitution? Ridiculously hard with two-thirds votes in Congress and 3/4 of the state legislatures. Impeachment? Something I favor as a more regular check on the courts, but most people want to restrict it just to actual crimes by judges, not for bad court decisions.
The best check and balance for freedom is exactly how the national government was designed-- which included no specific provision for judicial review of laws. The idea was that by having two houses of Congress and a President with a veto, the people themselves would be able to check any runaway passions, while multiple factions would encourage negotiation between many groups to protect minority rights.
If bad judicial decisions could be more easily overturned, say by a straight two-thirds vote of Congress, much like overriding a Presidential veto, I might be more supportive of judicial review as a check. But as it stands now, it is just an antidemocratic eyesore in our politics.
For those who haven't checked it out, my longer discourse on the sorry, pathetic history of Surpreme Court constitutional malfeasance is located here, a piece which was written to advocate impeaching the rightwing members of the Court.
Judicial Restraint Protects Gay Rights
The Supreme Court decided not to do something yesterday.
Which was a major win for gay rights.
Just as when the 2nd Circuit decided not to act last year meant that gay rights were protected.
In 2000, the state of Connecticut decided to eliminate the Boy Scouts of America from their list of approved charitable groups for government employee deductions because BSA discriminates against gays.
The Boy Scouts sued, arguing that the courts should overrule the state government's decision. They based their appeal on a Supreme Court decision in 2000 which struck down New Jersey anti-discrimination statutes which had required the Scouts to admit gay members.
That act of judicial activism by the Supreme Court was a blow to gay rights, which had won important that important victory in New Jersey. Because of that Supreme Court decision, no matter how gays succeed in politics, the Court will protect the right of bigots like the Boy Scouts to discriminate against gays.
But at least those same courts won't force governments to give those bigots access to government resources to raise money.