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May 25 2014

How Court Victories Drive Social Progress

As the court rulings in favor of equality continue to pile up in the wake of the Supreme Court’s ruling in Windsor — so far, every federal court since then has struck down state laws banning same-sex marriage when challenged — Scott Lemieux argues that such rulings can help drive public opinion.

In 1991, Gerald Rosenberg published The Hollow Hope, perhaps the most important and influential book about the Supreme Court written by a political scientist in the last quarter-century. Rosenberg argued that the ability of the courts to generate social change was generally overrated. While I don’t agree with all of his arguments, the book was an important and useful corrective for progressives who put too much faith in the judiciary to advance their agenda following the heyday of the Warren court.

In a revised edition that came out in 2008, Rosenberg argued that the campaign to achieve same-sex marriage rights through litigation was a massive blunder. “[A]ctivists for same-sex marriage turned to the courts too soon,” Rosenberg argued. They would have been better off with a legislative strategy “that would be less likely to produce backlash.” Many pundits, including those who supported same-sex marriage rights, echoed these claims.

The idea that social change achieved through the courts produces more backlash than comparable social change achieved through legislatures is a common one, most often heard about Roe v. Wade. Specifically, the idea is that court-driven change ensnares the issue in accusations of judicial activism, rather than letting it evolve quietly and organically, a trope that even Justice Ruth Bader Ginsburg has bolstered. (My scholarly work suggests that these claims are not actually very persuasive in the abortion context either.)…

The lesson is that political conflict cannot be avoided merely by avoiding particular means of affecting social change. When proponents of social reform win, they will likely generate a backlash by supporters of the status quo — no matter what institution creates the policy change. The only way to avoid backlash is simply to not win.

At this point, the success of the gay marriage litigation campaign should be clear. Public opinion has trended in a remarkably positive direction, ultimately reaching the politically cautious occupant of the White House. Same-sex marriage rights have continued to advance at the state level, and such marriages now have federal recognition thanks to the Supreme Court’s Windsor decision last year. Arguments that the judicial decisions favoring same-sex marriage would be a major liability for the Democratic Party have proven to be unfounded.

The courts are generally reluctant to get too far out in front of public opinion. I forget who it was who said that the Supreme Court likes to be the last man in on a gang tackle — once the runner has already been subdued by others, the court runs in and jumps on top of the pile while yelling “let’s do some justice here!” But I think it’s also true that court rulings can help drive public opinion by redefining the “norm.” I think that clearly happened with Brown v Board of Education and many other rulings.

Yes, there will always be a backlash, but that doesn’t mean the backlash is going to be effective or that it will derail efforts to secure greater justice or equality.

24 comments

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  1. 1
    Marcus Ranum

    Think how much money the right wing spent to get those laws passed. And cut me another slice of schedenfreude pie.

  2. 2
    colnago80

    It was Finley Peter Dunne who said that the Supreme Court follows the election returns. Thus, an argument can be made that the referendum results in Maryland, Maine, Minnesota, and Washington State may have influenced Justice Kennedy in the Windsor decision that the time was right to overturn laws agains same sex marriage..

  3. 3
    colnago80

    Re Marcus Ranum @ #1

    It certainly contributed to Dubya’s victory in 2004 by convincing the born agains to show up at the polls.

  4. 4
    frankb

    Legislators are supposed to weigh the arguments on issues but that is not written down anywhere. Pleasing voters is their primary concern. Judges are supposed to do it so sometimes they do. That can give equality issues a boost.

  5. 5
    Al Dente

    One thing the various court rules has shown is the homophobes are whiners. This is not helping the homophobes sway public opinion.

  6. 6
    Michael Heath

    Ed writes:

    The courts are generally reluctant to get too far out in front of public opinion. I forget who it was who said that the Supreme Court likes to be the last man in on a gang tackle — once the runner has already been subdued by others, the court runs in and jumps on top of the pile while yelling “let’s do some justice here!”

    I perceive this as another false truism. Instead I see the conclusions of the Supreme Court based on whether the conservatives have a majority or not. Where conservatives are dependable partisans though along with a relative handful of exceptions.

    If you want the court to concede the existence and meaning of the equal protection clause of the 14th Amendment, then vote for presidents who won’t nominate conservatives to the federal courts.

    And the argument made by some, even Barney Frank and Andrew Sullivan, that it’s best to legislate gay marriage protections at the state level, are just one more example of advocates denying the existence and meaning of the 14th’s Amendment’s equal protection clause.

  7. 7
    Mobius

    I have to disagree with Rosenberg. Given the make-up of so many of our state legislatures, as well as Congress, I don’t see legislative action toward same-sex marriage happening. And I don’t see it changing anytime in the near future.

  8. 8
    jameshanley

    While Rosenberg may have been wrong about the timeliness of the legal strategy (a concern I shared at the time, but which I’m glad proved incorrect), this does not undermine his general thesis. The public acceptance of gay rights and gay marriage had climbed considerably before we reached the current round of legal victories. If SCOTUS was not the last man jumping in, it certainly wasn’t the first tackler.

    I’d also note that Michael Heath’s comment about everything resting on whether the Court has a majority of conservative or not is a very thin analysis. It makes everything rest purely on the personality of the justices, and overlooks any role that institutional structures and professional norms might play. While personality probably plays the major role in how a justice normally decides in any particular case, the other factors play a big role in how narrow or broad rulings tend to be, what types of dissents and concurrences get written, and even what types of cases get accepted. For those who actually study the Court, there is a recognition that it is a considerably more complex institution than his comment would suggest.

  9. 9
    D. C. Sessions

    Mr. Heath, I have to disagree with your assumption that the Justices (and certainly the current Team Republicans) on the Supreme Court can be relied upon to rule the same way regardless of popular opinion. John Roberts is by far the best counterexample to your thesis, but not the only one.

    The thing to always keep in mind is that these are not stupid people. They have objectives, and Scalia (as well as Roberts) are very clear proof that their objectives are not based entirely on legal principles. That means, among other things, that they have a strong incentive to avoid giving the American people too much reason to vote for Presidents and Senators who will put less reliable Republicans on the Court when seats become vacant.

    There is a lesser incentive to keep the more principled members of the Court inclined to be guided by stare decisis even when the original decision was flagrantly partisan. But that’s a rule they can afford to ignore as long as they have a solid majority; it only acts as insurance for the contingency of their losing it.

    And they are not stupid people.

  10. 10
    marcus

    “…such rulings can help drive public opinion.”
    Plus, for an added bonus, it drives the wingnuts fucking crazy. :)))

  11. 11
    garnetstar

    I have always wondered about the courts’ unwilingness to be too far out in front of public opinion. They decide on the basis of the law that, say, someone or some group is being denied some important right. But, that’s too far out to make that ruling at that time, so they say: “Well yeah, you are being denied your rights under the Consitution, but not enough peope think that way right now, so just wait, perhaps for decades, and suffer the tyranny of the majority until enough people agree with you.”

    Isn’t that a violation of their oaths?

  12. 12
    garnetstar

    I mean, I know Roe v. Wade was thought to be “too soon”, and is credited by some with causing the organization of the religious right to politcal action, which we suffer from to this day. But think of the hundreds of thousands of women who would have died from illegal abortions had the court not acted! That’s certainly a damn big difference. Would the court perhaps will be waiting even today, still thinking that the general public had not caught on enough to the idea that it’s a woman’s right to choose, no matter what theocrats think? It’s not as if yet there’s overwhelming majority consensus on the issue yet.

  13. 13
    Hershele Ostropoler

    I prefer rights to be established or reaffirmed in the courts rather than the legislature (and in the legislature rather than through referenda). Precisely because the judiciary isn’t there to legislate; it drives home that the rights already exist.

  14. 14
    D. C. Sessions

    I know Roe v. Wade was thought to be “too soon”, and is credited by some with causing the organization of the religious right to politcal action, which we suffer from to this day.

    The RR was already organizing on a large scale prior to Roe v Wade, to a large extent based not on court rulings [1] but on the 100% legislative actions of Congress in the Voting Rights Act and Civil Rights Act. The Protestant RR didn’t even much care about abortion until their leadership got together with the Catholics and started using it as a more acceptable rallying cry than reinstating school prayer or the too-honest-to-mention “put the n*****s back in their place!” “Law and Order” had to go on the shelf for a while until the irony of Richard Nixon having run on it died down.

    Never forget that abortion, prayer, etc. are not the objectives. They’re the battle cries, but the battles are always for power — Citizens United, for instance — and not for guns etc. per se.

    [1] other than maybe Brown vs Board of Education and some of the Warren Court decisions that plastered a good bit of the country with IMPEACH EARL WARREN signs for years.

  15. 15
    cptdoom

    It’s also important to remember that the marriage equality movement was forced to go with a court-based strategy because our rights had been limited via Constitutional Amendments, which would have been prohibitively expensive to fight one by one. With those amendments in place, legislative victories were strictly limited.

    That’s not to say, however, that public opinion changes weren’t still vital to the judicial successes we’ve seen recently. After all, we’re only 10 years removed from Lawrence in which our right to live openly was recognized. Like most people I was very dubious that the Prop 8 case was a good idea (& wondered whether Ted Olson was trying something sneaky when he joined the team) precisely because it seemed like public opinion was too against us & we’d be stuck with another Bowers decision. But the irony is that losing Prop 8 – in a state thought to be supportive – energized the movement and helped create the change in public opinion. Through marches and protests and media coverage of real men and women, we brought the truth to the country.

    So I find it a bit humorous that some of the voices still claiming a backlash against us is just around the corner and a same-sex marriage decision would be the next Roe are those in the Religious Right, who desperately need that kind of energy. But history shows that they aren’t likely to get it. NOM is currently planning its second annual “March for Marriage” in a couple of weeks, and I bet their turnout will be worse than last year’s. Weddings are happy, joyful experiences that occur very publicly, unlike abortions. The reality of those marriages demonstrates how flawed the Right’s anti-gay arguments are – and show that nothing bad happens to regular marriages in the process.

  16. 16
    pocketnerd

    Yeah, yeah, always the same story on human rights: It’s “too soon!” right up until it’s obviously long past time.

    Thus Spake ZaraMobius, #7:

    I have to disagree with Rosenberg. Given the make-up of so many of our state legislatures, as well as Congress, I don’t see legislative action toward same-sex marriage happening. And I don’t see it changing anytime in the near future.

    And that’s exactly why we hear so much whining about “judicial activism” and “black-robed tyrants” from the wingnuts — the judicial branch is the only branch of government in which their plutocratic masters cannot directly buy influence through election spending. And lifelong appointments means today’s movement conservative is tomorrow’s RINO; as far right as the RATS (Roberts, Alito, Thomas, and Scalia) are, they’re not far enough right for today’s wingnut.

    With the same-sex marriage tide turning against them, I’d expect the spending (and the partisan lies in the Elephant Echo Chamber) to far exceed all previous records in the 2016 election. Being able to stack the SCOTUS with two more loyal neoconservatives would mean they could maintain a 5-4 judicial chokehold even when one of them goes off the reservation (like Roberts did in NFIB v. Sebelius), and would ensure the current oligarchy maintains influence long after the Fox News Geezer demographic is no longer politically influential.

  17. 17
    jameshanley

    @garnetstar,

    SCOTUS can’t enforce its own decisions, but has to rely on help from the politics branches. The farther ahead of them it gets, the less it can count on their support to make sure its decisions ate affective, not just air. As Hamilton said, the Court has neither the purse nor the sword, only judgement. And if it steps too far ahead of the public, their judegement is less persuasive, just because the public isn’t ready for it.

    Sometimes baby steps are an unavoidable necessity, even if they leave violations of rights on-going. But by pushing the envelope a little, the Court plays an important role in the public conversation. People don’t just accept something because the Court says so (who here like Citizens United?), but they can help push it in particular directions.

  18. 18
    Michael Heath

    D.C. Sessions writes to me:

    I have to disagree with your assumption that the Justices (and certainly the current Team Republicans) on the Supreme Court can be relied upon to rule the same way regardless of popular opinion.

    Well I would disagree with that as well since there are obvious glaring exceptions. So perhaps I didn’t go to the degree you claim for me here. For the record, I didn’t:

    Where conservatives are dependable partisans though along with a relative handful of exceptions.

    D.C. Sessions writes:

    And they are not stupid people.

    Well that’s self-evident and a point I never argued. However I do see a lack of emotional intelligence, i.e., wisdom, in Antonin Scalia, where he’s becoming more retarded as he ages. It’s my speculation that’s evidence he’s being influenced in a manner consistent with conservative Christians who get their news and opinion from Fox News and conservative viral emails.

  19. 19
    D. C. Sessions

    I wouldn’t exactly tie Scalia’s ex parte factual references to “emotional intelligence,” although he does seem to be heading towards a more open disregard for anything other than bald-faced pretexts for rulings he wants in the first place. Basing his opinions on facts not even remotely before the Court, for instance, is the sort of thing that prior Courts at least attributed to “common knowledge” and said so — he’s pulling this stuff ex culo and not even pretending otherwise.

    Which he can get away with — for now.

  20. 20
    F [i'm not here, i'm gone]

    “[A]ctivists for same-sex marriage turned to the courts too soon,” Rosenberg argued. They would have been better off with a legislative strategy “that would be less likely to produce backlash.”

    At this point, the success of the gay marriage litigation campaign should be clear.

    The court cases came after what, now? (OK: It was after the legislative strategies of one side or another. New legislative strategies. Either good ones, mostly supported, or really incredibly stupid ones, struck down.) And the bigger backlash is us.

  21. 21
    Ichthyic

    And the argument made by some, even Barney Frank and Andrew Sullivan, that it’s best to legislate gay marriage protections at the state level, are just one more example of advocates denying the existence and meaning of the 14th’s Amendment’s equal protection clause.

    you’ve come a long way.

    *salute*

  22. 22
    Ichthyic

    Yeah, yeah, always the same story on human rights: It’s “too soon!” right up until it’s obviously long past time.

    First time I recall reading this argument, it was Martin Luther King who so eloquently put it in “Letter from a Birmingham Jail”

    http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

    the whole thing is worth reading.

  23. 23
    arakasi

    Now is the time to get this issue before the Supreme Court. If any of the current cases make it to the court, I see the ruling splitting along the same lines of United States v. Windsor.

    Whoever becomes president in 2016 is almost certainly going to find her/himself replacing at least Ginsburg, and there is no way in hell that a Republican president would nominate a candidate who would support same-sex marriage. If this doesn’t get resolved in a year or two, then it may be put off for another couple of decades

    I would be better if we can also get laws in place to back up the legal rulings, but there are enough state constitutional amendments that would need to get cleared up – it’ll take years to get the whole thing sorted out.

  24. 24
    colnago80

    LRe arakasi @ #23

    The obvious answer to this is to insure that a Rethuglican president is not elected in 2016.

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