Why Brown Still Matters
The new left-liberal hostility toward judicial power was exemplified by Mark Tushnet's Taking the Constitution Away From the Courts, published in 1999. Tushnet advocated that rather than invest in constitutional litigation, progressives "ought to participate in creating constitutional law through our actions in politics." Tushnet's call unfortunately echoed the longtime editorial rhetoric of The New Republic, whose disdain for judicial protection of constitutional liberties culminated in the bizarre assertion that women's access to legal abortion was "a right that should be protected by politics," not the judiciary.
When prominent progressive scholars such as Tushnet join with The New Republic in calling for constitutional self-abnegation on the part of the federal judiciary, they embrace the legacies of Felix Frankfurter, Learned Hand and Robert Bork, not those of Earl Warren, William Brennan and Thurgood Marshall. To the extent that this position is animated by historically erroneous dismissals of Brown--and by similarly wrongheaded claims that the abortion rights movement would have fared better had the Supreme Court not handed down so strong a ruling as Roe v. Wade in 1973--forceful rebuttals of Klarman's historical distortions are imperative. As liberal law professor Erwin Chemerinsky has emphasized, "The erosion of faith in judicial review may cause courts to be less willing to enforce the Constitution."
The danger that an academic fad can have deleterious real-world consequences is starkly evident in Judge Richard Posner's off-the-bench observation in The New Republic that "the swelling chorus of 'judicial review' skeptics" has "undermined the complacent belief that judicial review is unequivocally a good thing." Perhaps progressives will be tempted to endorse Posner's conclusion, rather than Chemerinsky's warning, when they reflect upon the recent track record of the Rehnquist Court, but that temptation should be resisted and indeed rejected. Landmark decisions in the 1990s, such as Planned Parenthood v. Casey, Romer v. Evans and US v. Virginia (the VMI sex-discrimination case), all reflect how even a highly conservative Court sometimes can insure and advance individual rights. Indeed, anyone tempted to dismiss the political utility of progressive civil liberties litigation in today's federal courts should recall the Rehnquist Court's historic June 2003 vindication of gay Americans' basic personal liberties in its remarkable 6-to-3 ruling in Lawrence v. Texas.
Brown's legacy as our ultimate beacon of judicial protection of fundamental rights will resonate even more vibrantly this May 17. Last November the Massachusetts Supreme Judicial Court, building directly upon Lawrence, held in Goodridge v. Department of Public Health that the state Constitution does not allow for the institution of civil marriage to be discriminatorily restricted toopposite-sex couples. Goodridge is the climax of a state constitutional litigation strategy for gay marriage equality that reaches back to the early 1990s and bears more than a passing resemblance to the constitutional vision that animated Thurgood Marshall in the years before Brown.
When the Massachusetts court issued Goodridge on November 18, it delayed implementation of its order for 180 days. The past few months have witnessed sad, pathetic and ultimately unsuccessful efforts by Massachusetts Governor Mitt Romney to obstruct and postpone the court's ruling. The 180-day period expires on May 17, the day on which same-sex couples will first be eligible to obtain state marriage licenses. It is a fitting tribute to Brown, and to the courageous lawyers and Justices who demonstrated that constitutional litigation can indeed enhance human freedom, that Brown's fiftieth anniversary will be celebrated by the advent of another historic advance toward complete liberty and equality for all.