By Mike Dorf
Promo Number One: On Wednesday, Prof. Colb will be a guest on Victoria Moran's weekly one-hour radio show, Main Street Vegan, from 3 pm to 4 pm Eastern time on Unity Radio. They'll be talking about her book, Mind If I Order the Cheeseburger, and related topics. Instructions for how you can listen live (and call in!) or later download the podcast can be found here.
Promo Number Two: As I noted in a few posts over the last couple of weeks (here, here and here) tomorrow I'll be speaking on the Practicing Law Institute's annual Supreme Court Review panel. Other panelists include Prof. Colb, UC Irvine Dean Erwin Chemerinsky, Columbia Law Profs. Tom Merrill and Ted Shaw, NYU Law Prof. Bert Neuborne, and more. It's still not too late to sign up for a fun-filled day and CLE credit.
Okay, enough selling, now some thinking. I'll take the PLI program as my point of departure. Each year, the program covers the range of the Supreme Court docket but invariably we focus extra attention on the past year's "juiciest" cases. Here that will certainly mean the same-sex marriage cases (Perry and Windsor) and the two leading cases involving race: Shelby County v. Holder and Fisher v. Univ. of Texas. So now I want to raise the question of how much the Supreme Court matters, even in such "big" cases.
I raise this question out of a profound sense of ambivalence. On one hand, I think that the Court matters a lot in all sorts of subtle ways. I wouldn't have devoted my career to studying constitutional law if I thought it an unimportant topic.
On the other hand, I acknowledge that in the long run, Supreme Court decisions and even law more generally are more determined by what happens in society than vice-versa. Race relations is itself a classic example. There is a very substantial academic debate about the impact of Brown v. Board of Education on American race relations. One view, most forcefully argued by Gerald Rosenberg in his book The Hollow Hope: Can Courts Bring About Social Change?, says, in answer to the question posed by the subtitle, no. Rosenberg notes how the Court's mandate in Brown was largely ignored until the political system--spurred by the Civil Rights Movement--took up the cause of racial justice. The most vigorous defense of the courts, and the Supreme Court in particular, comes from the likes of Jack Greenberg, who argues that however limited Brown's direct impact, it was a crucial catalyst, serving as a moral beacon. Intriguingly, Michael Klarman offered a nuanced variant on the Greenberg thesis: Brown's indirect impact depended in substantial part on the fact that it sparked backlash against the ruling in the South, and that backlash catalyzed the growth of the Civil Rights Movement.
I think all of the foregoing accounts are right: Brown's direct impact was limited; it functioned as a beacon for some; and it sparked backlash for others, which in turn was catalytic for still others. The main point, though, is that in assessing the various different ways in which Brown played a role in American race relations, we are concerned much less with questions of legal doctrine than with questions about the complex interaction between one highly symbolic event and numerous other institutions and attitudes over the course of decades. It happens that the highly symbolic event here is a landmark Supreme Court decision, but the mode of analysis would not differ substantially if it were something else: Jesse Owens' performance in the Berlin Olympics, say, or the Soviet launch of Sputnik.
In thinking about legal developments over the course of the last few months, ask yourself which of the following is likely to have the most substantial, long-term impact on the real-world implementation of the law on race relations in the U.S.: (1) Fisher; (2) Shelby County; or (3) the George Zimmerman acquittal. Even though Fisher deals directly with a core question about which lawyers much fret, it seems the least likely to have a long-term impact, and not just because the decision was so interstitial. The Shelby County case could be highly significant, especially if Congress does not enact a new version of Section 4 of the Voting Rights Act that the Supreme Court sustains, or if the courts disallow the Justice Department's latest efforts to block voter-suppression measures through the VRA's "bail-in" provisions (as in Texas). But it's hard to imagine either case having the impact of the Zimmerman acquittal. Why? Because of the enormous media coverage and public interest of that case. And yet the Zimmerman verdict has no formal legal precedential value at all.
Law is not simply an epiphenomenal overlay of public opinion and the Supreme Court doesn't just follow the election returns, but in the complex interaction between the Supreme Court and society, it looks like there is greater influence from society to the Court than vice-versa, at least over the long run.
And that brings me to the same-sex marriage cases. We may never know the precise dynamic by which the Court ended up 5-4 to find no standing in the Prop 8 case. Maybe it really was just a product of the nine Justices' respective views about the litigation rights of ballot initiative sponsors. But there's at least a strong prima face case to be made that the pair of results in Windsor and Perry was exactly what one would expect from a cautious Court that sees its role as mostly ratifying and consolidating enlightened public opinion, rather than leading. Certainly Justice Ginsburg has been vocally saying exactly that for quite some time.
Justice Ginsburg has mostly been talking about abortion, arguing that the Court went too far too fast in Roe v. Wade. As I've said in the past, I disagree with both her descriptive and her normative claims about Roe, but I don't disagree with the broader point that courts cannot get too far out ahead of public opinion.