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.