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Laziness and the Judiciary

Julie Saltman thinks I'm all wrong about the courts:

I'll just add that the idea that liberals have become lazy from relying on the courts is ridiculous. The courts are there to protect people's rights--any people, not just the ones whose interests are represented by our largely white, male legislators--against encroachment by the state. If a law exists that discriminates against someone because they are a member of a protected group or violates their right to due process, liberals should absolutley fight it tooth and nail in the courts. But they should accompany that with the kinds of grassroots outreach campaigns the right has used so effectively. It's ridiculous to think that, for example, if a state passed a law that minors couldn't get abortions, the 13-18 year old women of the state could really mobilize and somehow affect change. That's a case for judicial review. But along with it, there should be a mass education and PR campaign to make sure moderate citizens know the facts and hear both sides of the story before they decide what they think is the just outcome of the dispute.

Remember November? Our side just isn't as good at outreach, PR and mass education as the right is at outreach, spin, and diseminating lies. Whether or not we should challenge unjust laws in court or try to get the legislature to change them is a side issue.
I don't want to be taken as holding some kind of straw man view to the effect that no one should ever launch litigation for redress of grievances. Obviously, the courts are there for a reason. The point about teenage women is especially apropos here. Oftentimes the judicial system can protect small, disempowered minorities and this is all for the good.

But as for the rest, well. . . .

Julie thinks liberals should pursue all available strategies. In principle, I don't disagree. But the point under dispute is whether or not, in practice, a habit of relying on lawsuits to win our battles for us tends to sap energy out of progressive politics and render liberals lazy. My contention is "yes." As Julie observers, our side is worse at "outreach, PR and mass education" than it should be? My contention is that this fact is not unrelated to the habit of trying to win things through the courts. It seems to me that gays and lesbians have done less than they might to put forward the substantive, moral argument for why they should be allowed equal married rights with heterosexual couples in part because of the attention being paid to legal battles. It seems to me that advocates of teaching evolution in public schools do a less good job than they could of explaining why they think this is important and why you should want your kids to learn proper science, in part because we tend to believe that the courts will always bail us out if the wingnuts get out of hand.

I don't really think this is a crazy view. It's commonsense to see that, at the margin, putting more energy into lawsuits distracts attention from conventional politics. Look at the case of the NRA, which is quite sparing in its pursuit of constitutional rulings, notwithstanding the fact that there's a whole amendment ot the constitution dealing with their issue in a potentially promising (from their point of view) way. Mostly, it focuses on being a highly effective advocacy group in conventional legislative politics. And it is very effective.

January 20, 2005 | Permalink

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Obviously, overreliance on litigation is not a good thing, and progressives should be clear-eyed about what it can and can't do. But I just don't see much evidence for Matt's claim that litigation has made liberals ineffectual. Liberals have been mor... [Read More]

Tracked on Jan 20, 2005 12:08:27 PM

Comments

Uh, you're both right. Ms. Saltman is right that legal strategies are really just "side issues." I mean, regardless of one's political bent, advocating change via the courts is a crap shoot at best. Just ask Randy Barnett and his medical marijuana. Then again, as Matt points out, who really gives a shit what the judges think? Let's get some dyed in th wool liberals elected to federal office. Then we can have a nice philosophical discussion about the morality of redistibutive politics.

Posted by: fnook | Jan 20, 2005 1:37:56 AM

What is the historical comparison with the early Civil Rights movement? Was there really a mass public movement to make the moral case integration in, say, 1948, when Truman integrated the Army[1]. Or in the various cases running up to Brown in the 1930s, 1940s, and early 1950s (Sweatt, McLearin, etc.)? Or in the six years after Brown where Eisenhower stalled segregation to prevent shutting the senate down, since segregationist Southern Democrats held the balance of power? I am not a great student of history, but I suspect that the movement towards integration was pretty quiet. We get caught up in the sit-ins and Mississippi Burning and Martin Luther King, but the 1960s were really the peak of 30 year effort by the NAACP to eliminate segregation, most of which occured as quietly as possible.

As further rebuttal, New Jersey's domestic partner law made CBS nightly news. And the actual gay marriages in California and Massachusetts were big news. It is true that SSDP benefits changes aren't making news, but it's not a super exciting copy :).

In terms of legislative victories, what is there to legislate? How many anti-gay adoption laws are left to repeal? Who is really against hate crime legislation? Who is really against HIV/AIDS treatment and prevention programs? Or employment non-discrimination? In places where such laws can pass, they are overwhelmingly supported and non-controversial. There is no need to wage a massive public relations campaign to convince the Seattle City Council that they won't all lose their seats if they pass a resolution in opposition to the FMA, or if legalize gay marriage.

The only thing I can come up with, in terms of A1 headline legislative battles, is that the state legislatures in California and Massachusetts could wedge their Republican governors on gay marriage. But I can easily see the Lambda Legal foundation not wanting to pursue such a strategy. It would be 'bad optics' to have legislatures favor gay marriage in Massachusetts and California and nowhere else. Is the climate ripe enough in Illinois to get the Dems to push on gay marriage?

[1] wow. Truman integrated the Army in an election year. Can you imagine a modern day president having those kinds of cojones?!?

Posted by: niq | Jan 20, 2005 2:41:01 AM

to follow up; I agree that legislative victores are better than relying on courtroom victories. But I can't see anywhere where there's a Big Win for gay rights.

Posted by: niq | Jan 20, 2005 2:41:58 AM

I think you are also both right. But I also think there is something larger here: many of the things that motivate the right and worry the left are battles already won by liberals. What the left has done, really, is underestimate the right. We assumed in the 70s that the game was ours, because we had won all the battles that counted.

What was ruled out was the power of a determined few to wage an amazing propaganda campaign over the course of decades to turn the country sharply to the right, to the point where liberals have real fears of seeing some of their victories overturned.

So while the points both of you make are valid, I think they are largely ancillary. At the end of the day, there is only one issue for Democrats: media management. We are substantially right on most things, the few places we aren't there is room for reasonable compromise, and yet Democrats are getting their hat handed to them by a good ol' boy network that has gotten extremely adept at media management. So much so that they have been able to manufacture things like a social security crisis out of thin air (over the course of decades, mind you), or convince the media that "values" means anti-abortion, anti-gay, or that multicultural is an insult to white southerners, or that feminism is a blight on America, or that restraint on capitalism is the same thing as communism, etc., etc.

That is the problem. Without that problem, we wouldn't be having the discussion about the merits of legislative success.

Posted by: Timothy Klein | Jan 20, 2005 2:49:02 AM

But the point under dispute is whether or not, in practice, a habit of relying on lawsuits to win our battles for us tends to sap energy out of progressive politics and render liberals lazy.

The point that ought to be under contention is whether or not such a habit even exists, or, perhaps phrased better, whether there is even any other possible alternative in many cases.

Once something is clearly laid out in the Constitution or statute -- like separation of Church and state -- but not respected in practice, there aren't a whole lot of alternative to going to court.

Ultimately every gain must be secured in court; a law that the courts will not enforce is an empty shell.

Posted by: cmdicely | Jan 20, 2005 4:28:31 AM

...whether there is even any other possible alternative in many cases...

One alternative would be, for example, to stop insisting that the 'Row v Wade' is some kind of a sacred pillar of the pro-choice movement. Liberals should be in favor of 'Row v Wade' being overturned and the issue decided by the public via state and federal legislation process.

This is no different than wishing that the firearm issues are considered on their merits rather than on parsing words of the second amendment.

Posted by: abb1 | Jan 20, 2005 4:52:58 AM

Actually, we're quite sparing about seeking redress in the courts, because we know damned well the courts are in the enemy camp. Do you realize that we spent DECADES trying to challenge gun control as a violation of the 2nd amendment? In approaching 70 years, the Supreme court has rejected certiori without comment on every last case where somebody raised a 2nd amendment issue. Every single one! And it's not like we haven't presented them with some perfect test cases, on a silver platter. It's not that they rule against us, they won't touch the issue with a ten foot pole.

After a while, you decide that it's better to get a bad law struck down on vagueness or over-reaching the commerce clause, than left in place because you said the magic words, "Second Amendment", causing the Court to refuse to take the case.

Liberals didn't have to be so circumspect about using the courts, because they were friendly to you. It's not like the Supreme court automatically rejects all abortion "rights" cases without explaination.

Posted by: Brett Bellmore | Jan 20, 2005 6:20:18 AM

See The NRA gave up on the ocurts because the law is against them and so propaganda is all they can do.

Posted by: Rob | Jan 20, 2005 6:32:16 AM

If the law were against us, Rob, they'd have simply taken the cases, and ruled against us.

Posted by: Brett Bellmore | Jan 20, 2005 7:18:52 AM

Liberals didn't have to be so circumspect about using the courts, because they were friendly to you. It's not like the Supreme court automatically rejects all abortion "rights" cases without explaination.

I highly doubt it was obvious to liberals in 60s that the courts were "friendly" to them (and since when does upholding the Constitution constitute friendly to liberals? Jesus Christ). I seem to recall even a lot of pro civil rights folks being shocked by the Brown verdict, and reactionaries were outraged because they fully expected the courts to continue playing the "racism is OK" game.

Posted by: Timothy Klein | Jan 20, 2005 8:09:17 AM

Intersting post, and great comments. I'm also in the "floor wax/dessert topping, they're both right" frame of mind - the left (in my case, I look to my Mother, who gets very agitated on this topic) tends to see the courts as the great fixer, and older lefties take the whole court appointments saga very seriously, and that can be at the expense of making the case for what we believe in the press and elsewhere; still, the courts are an important part of the mix where social justice is involved.

I'm more fascinated by the notion that Saltman is proving Matt's point by bringing up a topic as loaded as abortions for teens. It's hard to think of another issue that would simply go nuclear as the image of NARAL walking into a courthouse and saying "we're suing for those teen girls." Talk about not having gotten the community behind you. There's just going to be massive ugliness, and even a win in court won't help the "baby killer" rep that develops in the public mind.

As for the gay rights issue - I tend to agree, it hardly matters which way we go, at some point. I think the only way for gay people to get justice and fair treatment is through the courts, because however vocal, however much good PR we do (or at least however cool and stylish we make it) :), the reality is we are a small number and widely reviled for who we are and what we do. And in that sense, we are the ultimate example of why the courts exist at least in part to protect the minority from the rules of the majority. At some point, an authority figure may need to step in to say "you can't keep treating these people badly,' and possibly "shame on you." I don't think it's wrong of lefties to believe that there's value in that. I think the right understands the value, too, and that's partly why they've worked so hard to contravene the successes that the left has had in court. The other side's PR and appeals to a majority mob mentality do not make them right, or us wrong.

Posted by: weboy | Jan 20, 2005 8:24:08 AM

Since when was Roe just "upholding the Constitution"? (Now, Brown, that's another matter altogether.) At least we in the NRA have a stinking amendment in the Bill of Rights to point to, and the Supreme court STILL won't give us the time of day. YOU got it all handed to you on a silver platter, on the basis of some "penumbra" of an unwritten right.

Anyway, liberal laziness inspired by court victories followed Brown and Roe, it didn't precede them.

Posted by: Brett Bellmore | Jan 20, 2005 8:42:21 AM

U.S. vs. Emerson 2001?

What exactly do you want?

Posted by: absynthe | Jan 20, 2005 9:37:38 AM

Exactly what I want, is for the 2nd amendment to be taken as seriously as the 1st. In sort, for laws respecting guns to be subject to strict scrutiny. Guns = Printing presses.

And, yes, US v Emerson is one example of the many cases the Supreme court has refused, without any comment, to take.

Posted by: Brett Bellmore | Jan 20, 2005 10:03:35 AM

Why just guns?

What in your holy document said that arms are only guns?

Posted by: absynthe | Jan 20, 2005 10:07:29 AM

Emerson is just one Circuit. As far as every other circuit in the land is concerned, there is no individual right to bear arms.

Posted by: bobo brooks | Jan 20, 2005 10:27:06 AM

>Exactly what I want, is for the 2nd amendment to be taken as seriously as the 1st.

What makes you apparently believe that it isn't? Just because the apparently courts aren't willing to concede to your interpretation of the 2d amendment doesn't mean that it isn't taken seriously. It just means that they disagree with you as to what it means. And, given the introductory clause to the amendment, what it means is--quite frankly--a matter of debate.

"Gun Rights" advocates were recently unable to even get four justices to vote to grant cert on a reasonable case, even with the most conservative court in living memory. Give me a break, Brett. Go shoot some ducks.

Posted by: raj | Jan 20, 2005 10:33:32 AM

There is also the point that there are limitations to the first amendment. You have no right to libel as an example.

Posted by: absynthe | Jan 20, 2005 10:35:40 AM

Just because the apparently courts aren't willing to concede to your interpretation of the 2d amendment doesn't mean that it isn't taken seriously.

But this fact seriously undercuts Matt's larger point about the relative value of working the courts versus working the legislature.

No matter how much money the NRA brings to bear in the world at large, the interpretation they worship--the individual right to bear arms--is STILL not the law of the land.

Posted by: bobo brooks | Jan 20, 2005 10:58:19 AM

"Emerson is just one Circuit. As far as every other circuit in the land is concerned, there is no individual right to bear arms."

True. And this is known as a "circuit split", which usually causes the Supreme court to grant certiori... unless the 2nd amemdment is involved.

Right, Raj; The Supreme court refuses to take 2nd amendment cases, PERIOD. You've got the whole of 2nd amendment jurisprudence standing like an inverted pyramid on a case 70 years ago where the defendant was missing, so only one side got to argue their case. Which might be vaguely acceptable if you were talking about the 3rd amendment, but for a part of the Bill of Rights a hell of a lot of people care about? It's an outrage.

Posted by: Brett Bellmore | Jan 20, 2005 11:06:54 AM

True. And this is known as a "circuit split", which usually causes the Supreme court to grant certiori... unless the 2nd amemdment is involved.

Yep. They're pussies.

Posted by: bobo brooks | Jan 20, 2005 11:12:11 AM

Also, Brett, you should be glad they didn't grant cert. They're willing to tolerate the circuit split because they don't want to overrule Emerson, which is what they would do if they granted cert.

Posted by: bobo brooks | Jan 20, 2005 11:13:17 AM

I suspect you're right about that, Bobo, but that doesn't mean I'm glad. Right now, judicially, the 2nd amendment is dying the death of a thousand cuts, with the Supreme court maintaining a policy of malign neglect, letting the lower courts do the dirty work, one ruling at a time.

But if the Supreme court were to actually take a 2nd amendment case, hear the full argument for the individual rights interpretation, and rule against it anyway, they'd wake a monster. The NRA would probably end up with more like 20 million members instead of the curren 4 million, and the next election would turn most of the country into one big "kill zone" for anti-gun politicians.

And then we'd just go and amend the Constitution to undo the Supreme court's mischief, (We've got the states, it's getting the amendment out of Congress that's the problem.) and dare them to do it again.

Posted by: Brett Bellmore | Jan 20, 2005 11:23:55 AM

If the law were against us, Rob, they'd have simply taken the cases, and ruled against us.

You obviously don't understand why or how the Supreme Court grants cert. They only grant cert when there is a conflict in the law or the case presents an unsettled point of law.

As much as you or the NRA or any other gun nut (or John Ashcroft for that matter) may wish to believe otherwise the 2nd amendment is not about an individual right to bear arms. It is about "[a] well regulated Militia, being necessary to the security of a
free State". It is immediately followed by the third amendment, which is about the quartering of soldiers. The founding fathers hated two things above all others; an all-powerful executive and large standing armies that are beyond the control of the people. If you read the constitution, you will find throughout the document there are limits on the power on both the military and the executive (for instance the power to declare war rests in congress, not the president). The 2nd amendment is meant to limit the power of the Federal Government by explicitly sanctioning the formation of state militias. At the very least, the phrase "well-regulated" would permit the state to require registration and training requirements of all gun-owners. After all, how can you have a "well-regulated militia" if you don't even know who has what guns and if they know how to use them properly?

Posted by: Freder Frederson | Jan 20, 2005 11:25:51 AM

But if the Supreme court were to actually take a 2nd amendment case, hear the full argument for the individual rights interpretation, and rule against it anyway, they'd wake a monster. The NRA would probably end up with more like 20 million members instead of the curren 4 million, and the next election would turn most of the country into one big "kill zone" for anti-gun politicians.

I think the exact opposite would happen, the NRA nuts would finally be recognized for the paranoid idiots they are and we would get reasonable gun controls in this country.

Posted by: Freder Frederson | Jan 20, 2005 11:31:53 AM

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