Should Liberals Give Up On Litigation?

Two posts by Nathan Newman on January 13 and January 14 triggered an interesting debate on whether litigation is counterproductive in terms of advancing a "progressive" social agenda.

The first of these posts was a comment on the Georgia case challenging stickers inserted by the school board into biology textbooks noting that "evolution is a theory, not a fact" and suggesting the material on evolution "should be approached with an open mind, studied carefully and critically considered." Nathan is no fan of "intelligent design," yet he wondered (sensibly, I think) what was terrible enough about these stickers warrant a lawsuit:

Is it that horrific that students are told to keep an "open mind"?

The liberal struggle to include information about evolution in text books is a worthy one, but the reality is that many citizens have a deeply felt conviction that it's false and an affront to their religious beliefs. A sticker that de facto reminds students of the existence of those deeply held beliefs and requests that they approach the material carefully is not an establishment of any one religion, or even religion over non-religion.

He then went on to question why liberals were so obsessed with this issue:

Frankly-- and I'll be writing more about this -- I think progressives should stop fighting so hard against the teaching of "intelligent design" in schools. I think it's horsecrap science but I don't think the courts are the venue for debating the nature of scientific truth.

True to his word, he did write more the next day, only this time he took a somewhat broader focus arguing that litigation was generally counterproductive because of the backlash created by judicial activism. He used the prayer-in-schools cases as an example:

The reality is that forty years after the Supreme Court began eliminating prayer in schools and banning creation-science from the classroom, religious conservatism is more dominant in our public culture than when the Supreme Court first acted. And I don't think those two facts are unrelated.

Secularism increased in strength democratically in the United States throughout this century until the 1960s. But the Supreme Court decisions on religion and then abortion became a populist rallying cry for the building of the religious right in the 1970s, 1980s and 1990s. Instead of having to rhetorically attack their fellow citizens for secular changes in law, the religious right could blame these legal changes on a malevolent "elite", centered in the Supreme Court, that was attacking their way of life.

And liberals increasingly play into the Right's caricature of them as elitists by reflexively defending court decisions over democracy.

This elicited a response from Kevin Drum. Kevin agreed that some of the litigation being brought on church-state issues "just feeds the religious right's feeling of righteous besiegement while gaining almost nothing in practical terms.Who really cares if Roy Moore plops a Ten Commandments monument in front of his courthouse?" However, he concludes by chiding Nathan a bit for being unrealistic:

Still, even though I feel that way personally, someone is going to take this kind of stuff to court. There's just no way to stop it. And if I were a judge, what choice would I have then? The damn thing is pretty clearly unconstitutional whether it offends me personally or not. Ditto for Intelligent Design, which any honest judge would conclude after only cursory research is nothing more than creationism with a pretty face.

In the end, then, even though I agree with Nathan that some of the fringe issues being litigated today are probably counterproductive for liberals (though I'm less sure I agree with him about some of the core rulings of the 60s), I'm still not sure where this leaves us. What's the next step?

Nathan followed up with both a more detailed exposition of his argument and a response to Kevin's point on the practicalities.

This in turn triggered a somewhat sharper objection from Kevin:

The distinction here is this: creationism is Christian proselytizing, a no-no for government bureaucrats. ... Does this position run the risk of infuriating Christian fundamentalists and provoking a backlash? Of course it does. It already has. And yet I find myself unconvinced that that's sufficient reason to back down on this. ... Even if Nathan is right, that's a bridge I just can't cross.

Matt Yglesias then came to Nathan's defense (at least in part):

Dependence on the courts makes liberals fat and lazy. Important political fights are won on the airwaves, on the op-ed pages, in the streets, and at the ballot box. The "culture wars" fights are largely winnable, but only if you play the game and learn to play it well. Thus I find myself in strong sympathy with Nathan Newman's last point on the subject (more mixed feelings about his other arguments).

Scott Lemieux and Julie Saltman then weighed in defense of litigation as a tool, to which Matt responded as follows.

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.

There's more here and here, but the foregoing is enough of a background for what I have to say.

Is litigation counter-productive? I am surprised that no one mentioned what would seem to be the poster-child for this argument: the Massachusetts Supreme Court decision on gay marriage. This decision precipitated a dozen or more state constitutional “marriage amendments”, some of which appear to ban even civil unions, which were not previously all that controversial, and contributed significantly to the reelection of George Bush. Talk about counter-productive! Maybe Nathan is right.

But, then, there’s Brown v Board of Education. This decision too sparked a violent backlash. Yet, one would be hard pressed to argue that it was counter-productive in terms of segregation in particular and civil rights in general. Roe v. Wade is a decision that cuts both ways. Yes, as Nathan argues, the backlash triggered by this decision was counter-productive for progressives in that it contributed significantly to both the rise of the Christian Right and the marginalization of social progressives. Yet, one can hardly call it counter-productive in terms of a woman’s right to choose or, indeed, in terms of women’s rights generally.

What this tells me is that litigation is a mixed bag. But, then, so too is legislative action, which is Nathan’s preferred method for effecting social change. He argues (more or less) that legislation is less likely to produce a counter-productive backlash because the opponents of legislation will see the process as more democratic and therefore see the outcome as more legitimate and harder to oppose once enacted. This is an appealing notion, but I don’t think it’s right.

Take the Civil Rights Act and the Voting Rights Act for example. Lest we forget, these legislative acts produced enormous opposition, especially, though not exclusively, in the South. And, this backlash in turn contributed significantly to the formation of the Republican “solid South” that was critical to the election of Nixon, Reagan and now Bush. In short, progressive legislation is no less likely than progressive judicial decisions to produce a backlash that is counter-productive to furtherance of a progressive agenda.

The point here is that it is not the process of law-making that causes backlash; it is the outcome. Legalization of abortion by legislation would have been no less controversial and no less inimical to longer-term progressive agendas that Roe v. Wade was. The same is true of gun-control, gay marriage, prayer-in-school, evolution, affirmative action, and virtually any other “hot button” issue you can name. People may rant about the process, but what they care about is the result.

In terms of the propensity to generate backlash, therefore, I don’t think there is much difference between judicial and political law-making. However, judicial action does have two advantages over the political process which recommend it to progressives or, indeed, to anyone interested in changing the status quo: it is faster and, more important, it is undemocratic. In a democracy, the status quo is, almost by definition, that state of affairs with which the majority of the people are currently comfortable. As a result, changing the status quo via the political/legislative process is a long, hard road. Witness the history of the Equal Rights Amendment. By contrast, precisely because it is undemocratic, judicial action can change the status quo literally overnight. Indeed it is this power to change things suddenly that drives “conservatives” (who, generally at least, are interested in maintaining the status quo) so crazy.

Judicial action changes the status quo in two ways. First, of course, there is the holding itself. Roe v. Wade made abortion legal in all 50 states, literally at the stroke of a pen. Second, and more important, judicial action forces people to think about issues that they previously ignored – and to think about them in new ways. This power to effect a paradigm shift in public thinking is perhaps the most important aspect of judicial action. Yes, as decisions like Brown, or Roe, or the Massachusetts gay marriage decision galvanizes opponents. But they also galvanize supporters. And, even more important, they force the great majority of people to think about issues that otherwise would never have intruded on their consciousnesses in any meaningful way.

Again, I think Brown is a case in point. Prior to Brown, most Americans probably gave little thought to segregation, and, when they did, most probably thought of it as being primarily an issue of freedom of association; i.e. people ought to be able to decide with whom their kids went to school. I might think they are making a mistake in their choice to maintain segregated schools, but I will defend their right to make that choice.

Brown changed all of that. First, it forced people to think about segregation. Second, it forced people to recognize that there was more at stake than freedom of association. It is that paradigm shift, much more that the specific holding of the case, that is its principal legacy. Legislation, by contrast has no power to do this. Indeed, a paradigm shift is what makes legislation possible, not vice versa.

(By the way, I have some hope that the Massachusetts gay marriage case will end up effecting a similar paradigm shift with regard to gay rights. One of the remarkable things about groundbreaking judicial decisions is their staying power. Karl Rove and his marriage amendments seem to have carried the day for the moment. But, it is early in this game, and I have a great deal of confidence in the basic good sense of the American people in the long run. Sure, they can be stampeded into doing stupid things. But, if our history proves anything, I think, it is that, in the end, we come to our senses. It’s trite, of course, but still Lincoln was right: you can fool all of the people some of the time, but you can’t fool all of them – or even most of them -- all of the time).

So, should progressives abandon litigation. Certainly not. Should they rely exclusively on litigation? Certainly not. There is a feedback loop here. Judicial decisions contribute to paradigm shifts that eventually make advances through the political process possible. This, in turn, opens doors for additional judicial action. Neither politics nor litigation is the complete answer: the two feed upon and affect each other. But both, it seems to me, are essential.

In closing, I want to offer the perspective of age. When Nixon resigned, there were a lot of people who speculated that it would be generatiuons before another Republican was elected President. As it turned out, it only took four years. Things change. This too will pass.