Monday, February 02, 2015

Can the SCOTUS Bring About Social Change w/r/t SSM?

by Michael Dorf

If the weather cooperates, tomorrow, University of Chicago political scientist Gerald Rosenberg will be the guest speaker in a colloquium on law & social movements that my colleagues Aziz Rana and Sid Tarrow are running this semester. (A few years ago I co-taught a related colloquium with Sid, focusing on the Constitution & social movements, which led us to co-author this article on same-sex marriage.) Professor Rosenberg is best known for his book The Hollow Hope: Can Courts Bring About Social Change?. His answer to the question in the book's title is "mostly not." He argues that Brown v. Board was mostly a failure, and that what progress was made in dismantling Jim Crow was largely a product of politics--especially the 1964 Civil Rights Act and the mechanisms it created. He also largely rejects the "catalyst theory": the idea that while Brown and other court decisions themselves did not bring about much desegregation, they put the Supreme Court's moral authority behind the civil rights movement, and thus helped catalyze the political developments that were (somewhat) effective.

In preparation for Professor Rosenberg's visit, Professors Rana and Tarrow distributed to their students and made available to colleagues Rosenberg's 2005 article applying the thesis of The Hollow Hope to some then-recent examples, including same-sex marriage. Here is what Professor Rosenberg said in that article about the Massachusetts Supreme Judicial Court's 2003 ruling in Goodridge v. Dep't of Public Health (the first state high court decision to find a full right to SSM) and the Hawaii and Vermont precursors:
The result of these judicial victories has been nothing short of disastrous for the right to same-sex marriage.  ...What happened? The answer is simple. Same-sex marriage proponents had not built a successful movement that could persuade their fellow citizens to support their cause and pressure political leaders to change the law. Without such a movement behind them, winning these court cases sparked an enormous backlash. They confused a judicial pronouncement of rights with the attainment of those rights. The battle for same-sex marriage would have been better served if they had never brought litigation, or had lost their cases.
How different things look a decade later! Yes, there was an immediate backlash against Goodridge, as there had been a backlash against the Hawaii and Vermont rulings. But any account of the remarkable shift in American public opinion in favor of SSM over the last decade that counts litigation as an obstacle seems clearly false. In retrospect, Goodridge and the other cases played a catalytic role.

After SSM was legalized in Massachusetts, the right freaked out nationally but meanwhile, same-sex couples did have the right to marry in Massachusetts and then the rest of the country saw that people of the same sex marrying does not bring on an apocalypse. Moreover, the litigation campaign itself awakened the public to the fact that they really didn't have a good reason to oppose same-sex marriage. As Ronald Dworkin wrote, courts are a forum of principle, and when opponents of SSM had to articulate a principle to justify their opposition, they couldn't. The public took notice.

Professor Rosenberg can perhaps be forgiven for having failed to predict the last decade. Each of us can mistake a short-term setback for a permanent defeat and in 2005 perhaps it was reasonable to think that Goodridge and the larger litigation campaign had backfired disastrously. But if Rosenberg's pronouncements about the effects of the litigation look foolish only in hindsight, his claims about the LGBTQ rights movement lawyers were already unfair even a decade ago.

It is one thing to claim that there are limits to what courts can do without public support. I agree with Rosenberg that premature litigation can sometimes be counter-productive. I also agree that courts alone can accomplish little. If the expected June SCOTUS ruling in favor of SSM meets with massive resistance in Dixie or elsewhere, as seems possible, then it will take a determined national political effort to ensure that the rights recognized by the courts in principle are realized in practice.

But Rosenberg was already clearly wrong in 2005 when he claimed that LGBTQ leaders chose litigation over a political campaign. I have from time to time consulted with Lambda, the LGBTQ rights section of the ACLU, and other lawyers in the marriage equality and broader LGBTQ rights movement since at least the mid-1990s. Up until the last couple of years, they were EXTREMELY cautious about bringing litigation. It would not be an exaggeration to say that they obsessed about the possibility of either losing and making bad law that would get locked in or winning and inspiring backlash.

Indeed, it was precisely because of the movement lawyers' caution that the first high-profile federal constitutional challenge to a state law forbidding same-sex marriage--the anti-Prop 8 lawsuit that culminated in Hollingworth v. Perry--was brought by lawyers outside of the main LGBTQ organizations. Lawyers inside those organizations were very worried about the litigation when it was brought, only coming around to support it publicly when it became clear that the case would proceed with or without them.

To my mind, Professor Rosenberg makes two mistakes. First, he too easily moves from the (accurate) propostion that courts can't do everything to the (overstated) proposition that they can't do anything. (Or at least that's how Professor Rosenberg sometimes writes. In other places he's more cautious, expressing nuances that put his views more in line with those expressed by Professor Michael Klarman about civil rights and SSM.)

Second, Professor Rosenberg appears unfamiliar with how strategic modern legal rights organizations can be. Yes, there are some naifs out there who believe that justice can be fully achieved by winning a case. But they tend not to rise to leadership positions in what are intensely political organizations. Thus, even in 2012 and 2013--when marriage equality was exploding in the courts--Lambda spent almost half as much money on educational efforts as on litigation. And that does not count the PR benefits of the litigation as education spending, and Lambda is primarily about litigation. Meanwhile, other LGBTQ rights and marriage equality organizations have also pushed an educational and legislative program.

So that's the basis for some of the questions I expect to ask Professor Rosenberg during the colloquium and at a dinner following. It should be a lively day.


David Ricardo said...

As Mr. Dorf says, an individual regarding Goodridge as counter-productive in the early years after that ruling can be excused for making a premature judgment, but the idea that Brown was a failure is, to put it ungraciously, just absurd. That view simply defies reality.

First of all Brown was never about segregation in schools. It was about equality, that the promise of equal treatment before the law and due process was independent of race and the principle that segregation violated the Constitution. The fact that the decision was 9 to 0 further legitimized it, and without Brown there would have been an enormous delay in enacting the civil rights legislation of the 1960’s.

Secondly, and more importantly the backlash against Brown far from being counter productive was instead a huge force in promoting civil rights. The backlash exposed the racial haters for what they were, brutish thugs who would main and murder and terrorize in the name of so-called ‘racial purity’. It showed the vast majority of decent Americans that those who opposed equality were not acting on some basic principle but were in fact ugly, nasty prejudiced bigots that existed behind their mask of false respectability. Brown forced America to confront the reality of hate. And the images of grown men and women spewing hatred on school children forever changed the way the nation viewed segregationists.

And equally important, just as Goodridge resulted in demonstrating that no, allowing same sex marriage did not rain down the apocalypse on the nation, did not destroy moral fiber and only resulted in joy and happiness amongst a group of people, Brown resulted in demonstrating that no, integration and racial justice did not destroy the social fabric of the nation. It vastly improved it.

It is difficult for those of us outside the world of academic legal studies to understand how any individual within that world can come to the conclusion that Brown was a failure. How can a person so divorced of reality succeed in an environment that requires rigorous thought and analysis?

Joe said...

The courts are but one aspect of society and works with other institutions and social change generally. This is one reason it is somewhat misguided for people to be upset the USSC didn't decide SSM in the Prop 8 case or talk about how Kennedy (more accurately Kennedy and his colleagues) were "craven" or something for not deciding all the questions or protect gay rights with heightened scrutiny at times from comments 10-15 years ago.

I can understand the tone of the first comment. It is a shallow reading of Brown to say it "failed" or something because it alone didn't change about a century of state authorized segregation (that is, in a world w/o slavery). Or, that there was backlash. Or, the movement for racial equality is far from over.

The same talk arises in regard to abortion rights. Prof. Scott LeMieux has written about this issue on his blog and in academic writings. But, we still have the standard "Roe was a mistake" argument. It's a myopic vision.

Joseph said...

As Joe says, the courts are one aspect of society. If the Supreme Court decided 30 years ago that there is a constitutional right to same-sex marriage, one can imagine the backlash that would have occurred. I think it a dodgy proposition that public support would have developed as a result of a grand judicial pronouncement. When the courts outpace the political branches, I think there is a huge risk of spoiling the advancement of a social cause. I think Roe is a very good example of this and I fail to see the myopia (heh).

I don't know if Brown was successful or not as a "catylyst." We can try to imagine what would have happened in its absence. Its virtues have certainly been vindicated by history. Yet we cannot be concerned with the virtuousness of a pronouncement and whether history eventually lives up to that pronouncement. If the Supreme Court had declared slavery unconstitutional in the early 19th century, maybe it would have brought war sooner. It's hard to conclude such a decision would have truly advanced the cause.

On gay marriage, the courts have been walking somewhat hand-in-hand with public sentiment with enough breathing room to allow public debate. I do think the state courts served as a catalyst by making gay marriage an actuality that could be seen first-hand. However, we can also say that judicial losses pushed public debate. New York's highest court declined to make gay marriage happen. The legislature made it law just five years later.

I think it is hard to generalize about the role of the court in pushing debate. There will always be partisans who want to use the court where political processes are properly used and will use the gay marriage example as proof for a more grand proposition.

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Joe said...

As noted by the cited writer and also in the Greenhouse/Seigel book, opposition to abortion (and other '60s causes) were rising before Roe & it is unclear how much that decision changed what was happening given social backlash anyhow.

And, the positive is that abortion rights were pushed forward greatly & society was still supportive of the courts doing more than is the case today. Some point to some rising abortion rights movement, but that is at least somewhat exaggerated. This is shown by one of the few states with full abortion rights (NY) almost going back, stopped by a veto.

So, there is a lot of doubt how much Roe "spoiled" anything here. There was backlash to Brown too, there is always going to be. The ruling was 7-2 and even the Baptists at the time put forth a supportive statement. My only question there would be the breadth of the decision & I supported some caution in the gay rights context as well.

Joseph said...

Joe, you indicate that by judicial fiat a social cause like abortion can be advanced. I don't think we were on an inevitable march toward the kind of abortion protections that now exist. The difference is that I am okay with that, not seeing current abortion law as a positive.

Coming from a pro-choice perspective, all that might matter is that the right view has prevailed because of judicial action. Maybe I'm wrong, but I don't think Rosenberg is coming at it from such a partisan perspective. In that case, he grossly underestimates the judiciary's abilities.

I think Rosenberg is alluding to a society coming to terms with a particular social cause either because of the courts or despite them. You suggest this has happened on abortion, but I think that is the exaggeration. Polling shows strong support for many abortion restrictions that are not possible due to courts' rulings on abortion. Roe spoiled public debate. You're right there will always be an opposition/backlash; the question is whether society has nonetheless come to terms. That abortion should be legal early in a pregnancy is a widely held-view, but it is far from obvious this (now constitutionally irrelevant) position is due to Roe.

I agree courts can nudge an issue to some degree, but in general I don't think it can move public opinion very much though it can bypass it.

Shag from Brookline said...

Query: Did Griswold v. CT (1963) serve as somewhat of a "nudge" by the Court leading to Roe v. Wade (1973), even though Griswold did not address abortion?

Shag from Brookline said...

Somewhat related to this thread is Steven W. Bender's book "Mea Culpa: Lessons on Law and Regret from U.S. History," posted on the Legal History Blog. Here's an excerpt from the book description:

"More than a historical survey, this volume offers a framework for resolving some of the most contentious social problems of our time. Drawing on his background as a legal scholar, Bender tackles immigration, the death penalty, the war on terror, reproductive rights, welfare, wage inequity, homelessness, mass incarceration, and same-sex marriage. Ultimately, he argues, it is the dehumanization of human beings that allows for practices to occur that will later be marked as regrettable. And all of us have a stake in standing on the side of history that resists dehumanization."

The Court has been involved with some of these social problems. Dehumanization is the key. To what extent does the Court look to the provisions of the 14th A as dehumanization may be beyond discrimination? As Ronald Reagan used to say when he was the voice of GE on TV, "Progress is our most important product." Alas, progress takes time, especially from the Court.

Joe said...

"Joe, you indicate that by judicial fiat a social cause like abortion can be advanced."

I did not intend to indicate that this is the ONLY thing that advanced the cause. Roe v. Wade was not handed down in 1943. It was handed down in the middle of the sexual revolution. It was part of a long story, continues to be.

You note polling supports various abortion regulations. As noted, there is also the question here of the "breadth of the decision" but that can be cited all over the place. For instance, Warren Court criminal decisions were often broadly worded. In time, they were whittled down some. Casey did that with Roe.

I'm unsure what regulations have wide support that is still blocked now that Planned Parenthood v. Casey opened up abortion to more regulation. Abortion funding was blocked. Waiting periods upheld. Yes, some laws are stopped. Free speech decisions also stopped some laws of some popularity.

The debate for regulations was not "spoiled." In time, in fact, political support led to the appointment of enough justices to temper Roe to allow more regulations.

The overall success of Roe is that abortion overall remains constitutional, even if there are (to some) troubling limits. In perspective, even in Mississpi there is a signficant baic liberty. One that a majority supports. As George Bush Jr. once noted, society is not ready to ban abortion.

In 1970, most states largely did. Roe among other things changed that and it has stand the test of time. Anyway, again, backlash was present generally including in response generally to the sexual revolution & the allegation is made that Roe "caused" it. As noted by the researchers cited, the evidence doesn't hold up.

I readily grant constitutional rights limit the power of current majorities to have the full power to restrict certain things.


Yes, Griswold was such a "nudge" and many lower courts used it and other cases to support abortion rights before Roe came about. Roe did not come out of left field at all there.

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