Justice Anthony Kennedy’s recent 5-to-4 opinion in Roper v. Simmons banning the death penalty for 16- and 17-year-olds reinforces my Supreme Court habit. While the decisions are often 5-to-4 cliffhangers, and while the Bush White House may succeed in finding new appointees willing to silence the Court’s voice, the current Court is still capable of delivering powerful legal highs. The remarkable judicial odysseys of Kennedy and the late Harry Blackmun; Sandra Day O’Connor’s stubborn search for a middle ground; John Paul Stevens’s enduring wisdom and intellectual leadership; Ruth Bader Ginsburg’s steely brilliance; the decent pragmatism of David Souter and Steven Breyer; and the occasional overlap between Antonin Scalia’s quirky literalism and intense constitutional protection have coalesced to uphold affirmative action, beat back efforts to reverse Roe v. Wade, invalidate laws criminalizing sodomy, reinvigorate the rights of confrontation and trial by jury, uphold campaign finance reform, protect free speech rights and reject government efforts to invent legal black holes into which terrorism suspects can be dropped.
Being addicted to such an institution is understandable; but it is also dangerous–and not only because the voting patterns are so fragile. Don’t get me wrong. Judicial addictions are not always negative. Over the past fifty years, progressives, in close partnership with the courts, have helped to reinvent this nation, moving from the deeply racist and homophobic 1950s characterized by widespread misogyny, frequent eruptions of police violence, ongoing acts of religious intolerance and recurring spasms of political repression to a contemporary America that, while far from perfect, is at least a place where toleration–racial, political, religious, gender and sexual–has become a mainstream value.
But, important as courts have been, judicial fiat, standing alone, did not change American culture. Time and again, progressives reinforced the moral prophecy of the courts with intense political activity designed to persuade the majority that the Supreme Court’s pronouncements were not just law, they were also law that is just. For example, Brown v. Board of Education‘s call for racial justice in 1954 was followed by Dr. King’s grassroots appeal to the moral conscience of the nation, calling on us to renounce a legacy of racism. Significantly, Brown succeeded in changing the culture, but only as far as Dr. King succeeded in persuading the nation.
The assault on gender stereotyping followed a similar pattern. Ginsburg’s judicial victories when she headed the ACLU’s Women’s Rights Project in the early 1970s were supported by a brilliantly orchestrated movement designed to persuade Americans that it is unjust to deny women an equal chance to pursue their dreams. The combined effect of Supreme Court victories and related grassroots activity defending the fairness of the benchmark ushered in a gender revolution that altered America. No similar organized movement facilitated public acceptance of the Supreme Court’s barrage of revolutionary free speech decisions, which began with New York Times v. Sullivan. But who needs a formal movement when the self-interest of the media results in a constant drumbeat of support for the idea of free speech–a drumbeat that ultimately forged such broad acceptance of a robust free speech principle that flag-burning was deemed constitutionally protected by a left-right coalition that stretched from Justices Brennan and Marshall to Justice Scalia, with Justice Kennedy in the middle.
In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning. Three examples suffice.
The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. The high moral ground was ceded to opponents who stressed its moral complexity. The progressive response was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. That may be fine for courts, but it does not persuade ordinary people. In the early 1990s Ginsburg, by then a judge on the Court of Appeals for the DC Circuit, recognized the problem and urged that Roe be defended politically, not on its own terms but as a matter of necessity in order to permit women to function equally in the society. She was shouted down by lawyers afraid of weakening the precedent. It’s not too late to take her advice.
The gay rights movement, winner of a great judicial victory in Lawrence v. Texas, when the Supreme Court invalidated criminal sodomy laws, immediately redoubled its judicial bets by challenging laws banning same-sex marriage. That may be good law, but it’s terrible politics. A grassroots movement designed to explain why it’s unfair to deny gays the ability to live together in stable relationships would result in widespread support for legally protected civil unions and pave the way for popular acceptance of same-sex marriage. Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.
Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it’s fundamentally fair to do so. Legalistic arguments simply do not convince many well-meaning people who feel cheated when their religious symbols are banned. Nor do claims that onlookers are somehow harmed merely by viewing such symbols, as long as everyone has an equal right to have the symbol of his or her choice, including symbols of atheism, displayed. We don’t allow secular speech to be banned because it offends onlookers. Why should religious symbols be subject to “heckler’s veto”? Thus, unlike abortion and gay rights, where powerful fairness-based arguments exist in defense of judicial decisions if only we would deploy them, I’m not sure that in this case a persuasive fairness rationale exists.
Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic–which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance. The margin of victory in the 2004 presidential election may well have come from religious believers in Ohio who voted against their economic self-interest to protest judicial decisions that appeared to them to attack their belief systems without good reason. As progressives, we owe it to our fellow citizens to seek to persuade them why it’s fair to ask them to forgo acting on deeply felt beliefs. Most of the time, we can tell a compelling story that will convince many, and, at a minimum, provide a basis for engaging the skeptical. If we can’t, maybe the decisions just aren’t worth defending.