The flypaper court gets some vinegar

A recent piece by Sheryl Gay Stolberg in the NYT addresses the battle for the court, the next major fight likely to be seen in Washington. A lot of people get stressed out over the "politicization" of judicial selection, but reducing the political dimension of choosing judges and justices would require a lot of changes in and outside of the judiciary that are unlikely to happen anytime soon. Stolberg spoke to Jay Sekulow, chief counsel for the Pat Robertson-founded ACLJ, who describes the plans being made in anticipation of CJ Rehnquist's retirement. These plans include all the sort of things you'd expect with any major legislative action, including grassroots efforts directed at Senators facing reelection soon. They're preparing position papers on potential nominees, which are part guesswork on the policy impact a particular candidate will have if given the seat and part propaganda intended to make the choice palatable to President Bush or moderate Republicans in the Senate.

Of course, it may all be for nothing. Last weekend, the magazine section carried another piece by Jeffrey Rosen about the fruitlessness of pursuing social change through the judiciary. Rosen's points have a long tradition in social scientific study of American courts, going back to Robert Dahl's 1950s article arguing that the Supreme Court tends to support the national governing coalition at the time. However, Dahl's article is probably most well-known now among political scientists who study courts for being incorrect. Many scholars have taken issue with Dahl's conclusions and an article published about twenty years later pointed out a variety of mischaracterizations and exclusions from Dahl's analysis that Rosen doesn't acknowledge.


Although he doesn't mention it, Rosen's argument also echoes that made by Gerald Rosenberg in The Hollow Hope, which I've alluded to before here. Rosenberg argues that civil reformers waste their time with litigation, getting stuck in "the flypaper court" that has no real power to affect social change when their efforts would be better made in other arenas. Although Rosenberg's work makes some interesting points about the powerful myths surrounding Brown v Board of Ed, his evidence and conclusions about the lack of impact Brown had on desegregation and more generally about the ineffectiveness of courts to produce social change have been challenged, most notably by Michael McCann. He also alludes to work on the Supreme Court and public opinion, which has found that the Supreme Court is not often too far out of step with the public.

Still, there's a big gap between observing that "Brown v. Board of Education was actually popular with a narrow majority of the country" and concluding that institutions of government outside the national judiciary were prepared to do something about segregation in the mid-1950s. Sure, many of what are supposed to be the bravest steps the courts have taken aren't as unpopular as one might think, but with the political branches as slow to act and political agendas as resistant to progressive campaigns as they are, courts' impetus for change can make a big difference. The Massachusetts same-sex marriage case (Goodridge), for instance, led to the passage of state initiatives opposing same-sex marriage in other parts of the country, but in Massachusetts itself led to a constitutional convention that ended up recommending a "reversal" of Goodridge by permitting same-sex civil unions with all the benefits of civil marriage but the name itself, something that wasn't really on the legislative agenda beforehand. Now, with a net gain for supporters of gay marriage in the 2004 elections, there's some doubt about whether any reversal amendment will pass a necessary second time.

I think Rosen and many others are still smarting from what has been perceived as the widespread values backlash that put President Bush back in the White House for another four years. Sure, getting same-sex marriage in one state may seem like a bad trade for another Bush term and a swing against the Democrats in Congress, but that's no reason to conclude that courts have no power to effect positive social change. The House's impeachment of President Clinton in 1998 led to an electoral backlash against the Republicans, but that doesn't mean that Congress has no power to effect social change either.

Like it or not, progressives are not unified; even had they been able to clearly anticipate the response, there's no guarantee that same-sex marriage proponents in Massachusetts would have abandoned their efforts to change the state of the law through litigation. I don't care if Rosen or others want to be bitter about the political consequences of judicial activism in the 2004 election, but be open about your bitterness.

To me, the most interesting thing about this story was the opinion poll sidebar. In the print edition, it only included the nine current justices, whereas here we see the figures for "other" and "don't know any names." Unsurprisingly, more than twice as many Americans couldn't name a single justice whom they admired as named all of the current justices combined. I thought it was amusing that about twice as many people mistakenly named someone who isn't even on the Court as named my own favorite current justice, Stephen Breyer.