Sunday, June 28, 2009

Lagging Indicators

Employment, we know, is a lagging indicator, so that even if economic recovery begins in earnest later this year, labor force participation (itself a more meaningful number than unemployment) will likely remain low for considerably longer. Support for gay rights by politicians, it turns out, is also a lagging indicator, as noted in this NY Times story on how politicians appear behind the culture with respect to acceptance of homosexuality. (Interestingly, for many years after progressives routinely used the terms gay and lesbian, the Times itself continued to insist on the clinical "homosexuals." Are newspapers also a lagging indicator? But I digress.)

Although this is not the point of the Times article, I would suggest that it holds a broader lesson about the value of courts. A conventional critique of judicial recognition for rights that are the subject of political contestation points to the greater popular legitimacy of elected bodies to resolve such matters. The standard response notes that, where the very issue is protection of minorities and non-conformists, majoritarian processes are inadequate. But if, as I suspect, the Times story is only an exemplar of a larger phenomenon, there is another response available.

The larger phenomenon is this: Politics will, in general, be a lagging indicator of popular opinion about civil rights. Why? Because civil rights struggles, while they are struggles, are invariably divisive, and politicians facing the possibility of tough elections prefer to straddle such issues. (The effective political gerrymandering of the House of Representatives into a great many safe seats for Republicans and Democrats alike cuts in the other direction, but the reps in the swing districts still hold the balance of power, and they are the most likely to want to straddle.) This in turn will mean that legislators will avoid new rights legislation until popular support is very clear, at which point the legislation will be less valuable than it would have been some years earlier, when discrimination would have been more widespread.

Judges are not entirely immune from this phenomenon. They too are not going to protect rights that are on the fringe of public opinion. However, the culture of reasoned argument and, for federal and some state judges, the insulation from politics afforded by lifetime or long-term appointments, enable them to worry less about offending potential supporters. Over the long run, courts do not act in a strongly counter-majoritarian way. But recalling what Keynes said about the long run, if courts recognize rights that the political actors take another decade or so to accept (e.g., Brown v. Board in 1954; Civil Rights Act authorizing Justice Dept to enforce Brown in 1964), that's significant. Thus, in practice, courts, by sometimes being out ahead of politics, may end up being a better indicator of which rights the society is prepared to recognized than elected legislatures.

Posted by Mike Dorf


  1. Mike Dorf's Comment is certainly pertient in the current struggle to establish the right of mentally competent, terminally ill individuals to choose aid in dying, when confronted by a dying process the patient finds unbearable.
    Legislatures have not been able to enact laws making this choice affirmatively legal; only where voters take direct action via initiative have such measures been enacted(in OR and WA). The Montana Supreme Court is currently considering whether the Montana Constitution protects this choice, as a matter of privacy,dignity and/or equal protection.
    Last week a broad, diverse group of organizations and individuals filed amicus briefs urging the Montana Supreme Court to uphold the lower-court ruling that terminally ill Montanans have the right to choose aid in dying. These amici include, among others, medical associations and individual clinicians, civil liberties and human rights organizations, bioethicists, religious leaders, Montana's leading constitutional law experts, and Montana State legislators, arguing that the State Constitution's guarantees of privacy and dignity protect this choice. available in full here:

    The brief of the Appellees is due on 7/15. The State's reply brief is due 8/13.

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