On Sat, 25 Jul 2009, Joseph Catron wrote:
>> And it is not coincidence - its very institutional structure is
>> designed to prevent change - the separation of power, the power of the
>> judiciary (always a conservative force)
>
> This is the second time within a week I've seen an LBO-Talker make this
> claim, here or elsewhere, and I'd be very interested in hearing either
> of you, or anyone else, expand on it. Between McCollum vs. Board of
> Education, Brown vs. Board of Education, Gideon vs. Wainwright, Miranda
> vs. Arizon, Roe vs. Wade, and others that have inevitably slipped my
> mind, hasn't the American judiciary often stood at the forefront of
> social progress? (I mean way the hell in front of society as a whole, to
> an extent that's been problematic at times.) Or have I missed something
> obvious?
All your cases cluster around the Warren Court, which was a big exception. It's the liberals' favorite court, and the one that conservatives think raped America. But both sides agree it's a big exception.
Roe comes the year after Warren died, but we can credit it to his court.
(McCollum is before his court, but it's exceptionality is part of a whole fascinating subtopic in itself, namely the long "incorporation process, whereby the Bill of Rights, which originally only applied to federal laws and had no application to the laws of individual states, gained validity as if had been written to refer to state law too via the slow assimilation of the 14th amendment. McCollum is near the end of that century long process, itself an entire inversion of original intentions. On this topic, which is a bit afield, I highly recommend Akhil Reed Amar's _The Bill of Rights_. To sum up, this process has had progressive and conservative effects -- at different times it's produced drastic jerks in opposite directions. It is not in itself an inherently progressive process, although it certainly is a deep part of American law and the American creed as we know and face it now.)
Wojtek specifically said the judiciary was "designed" to be conservative, which points to founders' intentions and the earliest period of the court's history. As Doug said, you can read a lot of the intentions in the Federalist papers. Another source for this view of the judiciary (and lawyers) serving as America's functional equivalent of an aristocracy resisting change is de Tocqueville's _Democracy in America.
The Warren court is probably the only era where the court was in advance of society's reformers. Instances of the opposite abound. The very first era of the Court, where it became a powerful branch under Marshall (it was pretty weak tea in 1790s), is replete with examples of Marshall frustrating attempts at democratic control of the economy, some of which are precedents even today. The Taney court that held back progress in racial law before the civil war is infamous. The courts after the civil war that destroyed Reconstruction are even more so. The supreme court that struck down Roosevelt's programs similarly stands out.
The more detail you go into, the more complicated this gets of course. There individual cases that are exceptions for every court; there are competing long term trends; and individual cases, besides always being infinitely interpretatble, often contain literally contradictory views in their dissents. (Many of our favorite precedents were originally dissents.)
But no matter how you slice it, if you take the long view instead of focussing on Warren, it's not hard to see why people would say the judiciary has generally been conservative branch, more apt to brake reform than to spur it. Especially if, like both Wojtek and Doug, they see the US Constitution as an essentially conservative document, which it is the duty of the courts to uphold.
In addition, many people on this list have made two more arguments.
One is the counterfactual argument that when the court goes out ahead of the legislature, it inevitably lays a more fragile groundwork, and spurs more backlash, then if the same result had been achieved by steady maturation of a social movement demanding it and getting its way through the legislature.
Roe is often cited in this regard. People argue that there was a powerful abortion rights movement that could have gotten specific laws passed. And that the time and organizing required to do that would have educated the populace and laid firmer foundations. But Roe short circuited that by giving many of the educated, urban women who might have been the most active organizers much of what they wanted, deflating the movement prematurely, and leaving many poor and rural women to get sausage-tacticked to death, a process that began almost immediately with Hyde Amendment.
It is also often pointed out that real turning point in the civil rights struggle was not the Brown dcision, but the Civil Rights Acts of 1964 and 1965 which were pass through Congress. In the south, the direct result of Brown was "massive resistance" and a huge swing to the right throughout the region, whereby liberal governors were replaced by super race baiters. Which in part spurred the birth of the modern civil rights movement. Which led to the laws. So (this argument goes) to call the court the force that led to the change in civil rights is a little rube-goldbergish.
A second argument is that the left in general was misled by the Warren Era (and by the success and influence of Ralph Nader 1965-1979) to put its faith in litigation rather than organization, and that this has virtually dissolved it as an organized force; weakened its power; and bestowed its current bugaboo status as "a bunch of elites trying to subvert democracy."
I'm not going to defend every element of this position, although I do have a good deal of sympathy for it. But I'm not an expert and it's not a big thing on my agenda. I'm just trying helpfully answer your question as to where people who say this are coming from.
As for written works, here's one you might try from a lawyer who used to hang out on this list and for whom this was a real hobby-horse:
http://brennan.3cdn.net/a8927140bc5b1483e7_fxm6b98k1.pdf
When I asked him for a book on the subject, he recommended _The Hollow Hope: Can Courts Bring About Social Change?_ by Gerald N. Rosenberg. But I haven't read a word of it, so I can't say whether it's good.
Hope that helps.
Michael