by Alan K. Chen
In 2005, shortly before he was appointed to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Review criticizing liberals’ reliance on litigation to accomplish social reform. This was not a surprising position for one of Federalist Societyto take. Conservatives have long frowned upon public interest lawsuits as a means of pursuing social change.
But (now Judge) Gorsuch’s position was more nuanced than the standard conservative refrain. He argued that liberals could be more successful in achieving social change by pursuing reform through the democratic process. To be sure, there is no shortage of critics on the left (including one cited by Gorsuch) who have made the same claim about the limitations of public interest litigation, including former President Obama. They also have suggested that progressive reform through community organizing and other forms of democratic participation is not only more effective than reform lawsuits, but also more sustainable.
Debates over the efficacy and legitimacy of reform litigation have thrived since the movement to abolish slavery, when lawyers and other advocates disputed whether abolition could be more effectively achieved through lawsuits or legislative repeals. As it turns out, it took a war -- a real one, not a cultural one -- to resolve that divide.
The critique of litigation’s role in social reform raises important points about the nature of our political and legal system. But the notion that democracy is superior to litigation as a means of social reform overlooks something critical. Litigation itself is a deeply embedded way of participating in our constitutional democracy for the politically powerless. It is a manner of expressing the interests of marginalized groups, for whom the prospect of meaningful democratic reform is bleak. Indeed, the Supreme Court has recognized that litigation for social causes is a form of constitutionally protected expression.
It is facile to suggest that prisoners, transgender persons, or Muslim Americans should not seek social justice from the federal judiciary because they can effectively mobilize through the democratic process. Indeed, this is one reason the NAACP sought relief through the federal courts rather than politics in its fight to end racial segregation, culminating in the landmark decision in Brown v. Board of Education. The recent lower federal court injunctions against President Trump’s Executive Orders on immigration are another example.
The same goes for conservative constituencies whose views place them at the margins of our political system -- evangelical Christians, gun owners, and even extreme conservative voices whose speech is not palatable to mainstream America. Conservative public interest organizations have increasingly turned to litigation to achieve what they have not been able to accomplish through politics, including religious liberty protections for business owners. In achieving social change where there are structural flaws in our democratic system, litigants and the federal courts contribute to our democracy, not detract from it.
None of this is to say that social reforms ought to be achieved exclusively through litigation. As Scott Cummings and I have written in our book about contemporary public interest lawyering, public interest work has evolved over the past generation to embrace a multivalent approach to social reform, including, but not relying on, litigation, and extending to community organizing, legislative reform, and public education. None of these approaches can work alone; all of them can accomplish a lot when employed in a complementary fashion. Through these efforts, public interest litigation advances democracy not as a centerpiece, but as one of a set of participatory tools.
Finally, unlike political institutions, federal courts have rules about which facts count. In an era when fake news pervades our politics, it is hard to imagine an informed debate over extending rights to Syrian refugees or children of undocumented immigrants. As Judge Gorsuch knows from his distinguished service on the federal bench, courts have rules about the reliability of evidence that enhance the possibility of reasoned decisions in ways that simply aren’t possible in political arenas.
As a nation, we can only hope that if Judge Gorsuch is confirmed as a Supreme Court Justice, he will be open to the idea that litigation is actually a component of the democratic process. Public interest litigation isn’t the antithesis of democracy; in the twenty-first century, it may be democracy’s last refuge.