After discussing law and politics with my fellow progressive friends, I'm constantly amazed at my friends' perceptions of the Supreme Court. I often hear variants of: "the Court is necessary to protect liberty against Congressional/Executive overreaching" and even "the Court has done a lot in its history to protect and expand liberty." I don't think it's a stretch to conclude (at least in my experience) that progressives tend to believe much more than conservatives do that the Court can be and is an essential safeguard of our liberties.
Unfortunately, this perception of the Court is wrong. Or, at least, it is wildly exaggerated. Progressives have trumpeted the potential and actual contributions of the Court as helping their cause, when in fact it should be right-wingers, most emphatically not progressives, who prefer an expanded judicial role.
For most of its history, the Court has stood in the way of progressive change, and at many times has displayed outright
right-wing activism. Examples abound:
Dred Scott v. Sandford (ruling that slaves were not citizens),
Plessy v. Ferguson (approving of public racial segregation),
Lochner v. New York (striking down a maximum hours law). The myth that the Court will "stand up" to Presidential overreaching clashes with a decidedly mixed reality - a reality that includes the infamous (and not too distant in the past) Japanese internment decisions of
Korematsu v. United States and
Hirabayashi v. United States. These cases are just some of the more prominent examples of the Court's long history of rightward leaning.
In fact, I believe we are in another era of conservative Court dominance, where the Court is and will continue standing in the way of progressive change, and simply look the other way when abuses of power occur. And we are very close to another period of outright judicial right-wing activism, in which we can expect not just future progress but past progressive victories reversed.
But, my friends always respond, the last few decades have shown that the Court can act as a model for progressive change. Just look at the court led by Earl Warren. Plenty of progressive decisions came down during this period, right?
Not so fast. This reminiscing about the Warren Court (and the early Burger years) leads to vast exaggerations about the Court's progressive bona fides. Consider first why progressives are always pointing to the Warren Court era of all the many years the Court has existed. It is because this era was an anomaly - there are simply no other comparable eras in Court history, and I doubt there will be again any time soon.
But more importantly, it needs to be asked just how much progress came about as a result of the Warren Court's (and early Burger Court's) prominent decisions. Let's take a brief look:
Brown v. Board of Education.
Brown is almost certainly the most celebrated decision in the history of American law, and not without good reason. Nevertheless, how important was Brown, really? Looking at events subsequent to the decision, the answer seems to be: not very. Brown triggered immediate backlash among southern white reactionaries, which to say the least did not improve the lives of blacks in the south. Schools remained segregated despite (and possibly even because of) the Court's decision for years afterwards, despite the Court's embarrassingly ineffectual pronouncement a year after Brown that states must move with "all deliberate speed" to desegregate schools. It wasn't until after the Civil Rights Acts of the 1960s that got the ball rolling at all, and even now schools remain quite segregated.
I am not saying that the Court should have never handed down Brown. I am saying simply that a persistent myth surrounds Brown, making it (and the Court's role) far more important in the Civil Rights movement than it actually was.
Roe v. Wade. This is the biggie - how could Roe, of all cases, not been seen as a triumph of liberal adjudication? Simple: Roe played the dominant role in establishing the religious right movement, defeating the Equal Rights Amendment, and creating the damaging "culture wars" we deal with today. And all this for an exaggerated progressive benefit, since most states were already moving towards liberalized abortion laws when Roe came down.
Again, this is not an argument that Roe should be overruled (it should not be), nor is it an argument that the Texas anti-abortion law shouldn't have been struck down in the first place (it should have been, in a different way). Rather, it is to show that even the Court's rare "progressive" and "liberty-expanding" decisions can be and are harmful to progressive causes.
Griswold v. CT; Loving v. Virginia. Surely Griswold (striking down a contraceptives ban), and Loving (striking down a ban on interracial marriages) are examples of liberty-expanding decisions that didn't have a significant backlash, correct? Well, even here the results of the Court's action were not clear. Admittedly, the laws the Court struck down were still on the books, and it's true that some of the public generally accepted them. However, by the time these decisions came down, these laws were enforced only rarely when one considers how few states actually had the bans. It is certainly not far-fetched to argue that if the Court had not acted, these bans would have been eliminated by legislative action within the next five years or so anyway. So, for all of the progressive reminiscing about these decisions, how much practical impact did they really have?
So -- what's the practical meaning of my argument? Well, the GOP has been quite successful in equating "judicial activism" with "liberalism", even as Justices Scalia and Thomas are the most activist members on the Court today. This attack has been successful, in part, because of progressives' explicit, vocal, and misguided reliance on the Court as a protector of rights, particularly of people shut out of the political process.
Perhaps a progressive push for the Court to have a more hands-off approach to Constitutional interpretation will also help prod Democratic and Republican presidents alike to nominate Justices that will meddle less frequently in policy matters, ultimately helping (or at least not hurting) the progressive cause.
But perhaps this observation won't have much practical effect - though in any case, I think it needs to be said to counter what in my mind is a troublesome reliance of progressives on the Court protecting liberties, if only we get the "right" people on the Court.
I'm someone who has profound respect for the Supreme Court as an institution, and would go as far to say that I'm a SC "junkie". But this does not and I believe cannot translate into the hope that the Court has been, is, or will be a defender and advancer of the progressive vision. I think this will become only more clear as we embark onto another period of right-wing judicial dominance.