How important is the Supreme Court to the advancement of individual rights? Very important, many would contend, when the people whose rights are being advanced lack political power. Our constitutional democracy rests, after all, on the notion that people disdained and disfavored by the majority can still find justice before an independent Supreme Court.
Some critics and historians, however, have always downplayed the Court's role. They argue that progress apparently flowing from Court decisions would have come eventually, or even sooner, through the political process, and that reform might been more effective or better crafted if the elected branches had brought it about.
Much of this criticism has come from those on the right who condemn the Supreme Court protections of individual rights as "judicial activism." In a different vein, some on the left see the Court as an elitist institution and view grass-roots politics as the true source of social progress.
In "Constitutional Politics and a Conservative Court" (TAP, Spring 1990), constitutional scholar Cass Sunstein offers a new rationale for downplaying the Supreme Court's role in advancing individual rights: optimism. Although the Court is currently narrowing the scope of individual rights, Sunstein counsels supporters of civil rights against despair. History teaches us, in Sunstein's view, that the Supreme Court's role is not only unnecessary but often counterproductive because it "stimulates the tide of reaction that swamps the [positive] effect of the rulings."
In support of his thesis, Sunstein points to Brown v. Board of Education, the landmark 1954 school desegregation case in which the Court declared that laws relegating African-Americans to second-class citizenship violated the equal protection clause of the Fourteenth Amendment. While clearly an admirer of the Brown decision, Sunstein contends that it had little practical impact, because a decade later, in 1964, only 2 percent of Southern schools were integrated; he credits the progress we have made solely to the political action and organizing that led to the Civil Rights Act of 1964 and the Voting Rights Act of 1965. "Martin Luther King," Sunstein writes, "may well have been a more important source of constitutional change than all of the Warren Court's race decisions."
Yet to ask whether the Supreme Court or Martin Luther King had a greater impact on civil rights is to ask the wrong question. The Court's decisions and the civil rights movement energized each other. While Brown v. Board of Education would have led to little progress without a mobilized popular movement, the successes of that movement equally depended on the Court.
Sunstein misses this critical point by focusing only on the Court's shortcomings in providing an immediately effective judicial remedy to school segregation. He ignores the tremendous power of the Brown Court's declaration of rights in creating a political and moral climate that enabled the civil rights movement to flourish. For while the judicial remedy of school segregation in the decade after Brown was nearly a total failure, the rights and constitutional values proclaimed in Brown provided the basis for crucial political victories, as the Supreme Court struck down segregation in public facilities, transportation, and courtrooms. Two years after Brown II, Congress passed the 1957 Civil Rights Act, creating the Civil Rights Division in the Justice Department, and laying the administrative groundwork for future executive enforcement. In Simple Justice, Richard Kluger noted that "the mass movement sparked by Brown was unmistakably thriving as soon as six months after the Court handed down the implementation decree."
The most poignant illustration of the interplay between the right declared in Brown and the success of political action is the event that many, including King himself, considered the critical moment in the nonviolent, civil rights movement: the Montgomery bus boycott.
In his first address to the Montgomery Improvement Association, only days after Rosa Parks's arrest, King inspired the potential boycotters with the moral force of Brown: "It we are wrong, the Supreme Court is wrong. If we are wrong, the Constitution of the United States is wrong."
Eleven months later, on the very day that a distraught King thought the historic citizen boycott was about to be broken by obstructionist maneuvers, the Supreme Court, relying on Brown, declared Montgomery's bus segregation policy unconstitutional. "The darkest hour of our struggle," wrote King, "had indeed proved to be the finest hour of victory." The Montgomery bus boycott thus presaged the truth of King's later words: "Direct action is not a substitute for work in the courts and the halls of government....Indeed, direct action and legal action complement one another; when skillfully employed, each becomes more effective."
Although massive resistance could prevent the Supreme Court from turning its words into remedies, the Court's interpretation of constitutional rights forced many Americans to confront the discrepancy between our constitutional ideals and racist social practices. The Court's ruling against racial exclusion compelled white America to acknowledge the hypocrisy of this rights-reality gap and created a positive tension pressuring other institutions to respond. King played on this tension like a maestro. Like other civil rights leaders, he did not try to convince Americans to change their values. Rather, he used the promise of Brown as he did the promise of equality in the Declaration of Independence to stir dissonance in America, showing white Americans that only by changing their treatment of blacks could they stay true to their country's ideals.
Thus, it is pointless to speculate about the relative importance of Brown and the legislative victories of 1964 and 1965, because Brown itself was an integral part of the prelude to those legislative achievements. Judge Jay Harvey Wilkinson wrote in From Brown to Bakke that "Brown was the catalyst that...culminated in the two major civil rights acts." Without Brown, the very protest against segregation would have seemed to many to be a battle between law-breaking protesters and law-abiding segregationists. With the stroke of a pen, the Supreme Court shifted the moral weight of the Constitution -- and of law generally -- from those who sought to preserve the caste system to those who sought to dismantle it.
We can also see the Supreme Court's influence in the arrested development of rights that have not advanced, and have even been set back. Consider the litigation in the 1970s over racial segregation in Northern inner cities. Minority plaintiffs claimed that racial ghettoization in Northern cities stemmed from an interlocking network of discriminatory governmental and private actions that were as unconstitutional as the Jim Crow laws that had required segregation in much of the South. The Court chose not even to give these claims a full hearing.
Many would contend the Court was correct to resist such claims because the judiciary lacked the power to remedy pervasive segregation single-handedly. The Court did not, however, simply acknowledge its limited remedial power; it developed a series of evidentiary hurdles that made it nearly impossible for minority plaintiffs to demonstrate how interlocking patterns of housing, school, real estate, and employment discrimination produced unconstitutional racial segregation. While Brown triggered political progress, the Court's decisions in the 1970s put a stamp of constitutional legitimacy on inner-city segregation.
Had the Court of the 1970s recognized the constitutional infirmity of Northern segregation, it at least would have forced the majority to see inner-city segregation as a byproduct of governmental policies. Today's civil rights and political leaders would have been empowered by the Court's declaration of constitutional rights and wrongs, just as the tension created by a rights-reality gap empowered Dr. King following Brown. The Supreme Court's decision in Bowers v. Hardwick (where it approved a Georgia statute that defines private homosexual acts between consenting adults as a crime) is another example of how the Court's recent inaction has hurt the cause of civil rights. In an unusual admission, Justice Lewis Powell, who provided the crucial fifth vote for the Court's majority, recently admitted that his vote was a mistake. But Powell also sought to play down the significance of his vote on the grounds that no one was sent to jail.
Yet, the Supreme Court's legitimation of bigotry toward homosexuals is felt every day in the public and private lives of millions of Americans. Due to Justice Powell's fifth vote, any act of bigotry toward homosexual employees or tenants may be defended in states with draconian "anti-sodomy" laws as arising not from discrimination, but from criminal homosexual activities. Furthermore, according to the Alliance for Justice, more than 100 cases alleging violations of civil liberties have been denied on the basis of Hardwick. Worst of all, by putting its constitutional stamp of approval on laws targeting homosexuals, the Supreme Court told Americans that they need not question whether their private prejudice or public opposition to gay rights laws could be squared with their respect for the Constitution and the ideals of individual liberty. The Court's decision in Bowers v. Hardwick told gay Americans who had suffered the physical and emotional scars of discrimination, that the pain inflicted upon them did not implicate our constitutional values.
Sunstein takes his argument one further step. He says that particularly strong Supreme Court opinions protecting individual rights can have a long-term negative political impact. Here his example is the aftermath of Roe v. Wade. In his view -- which I will call the "If Not For Roe" myth -- pro-choice forces would actually have emerged stronger in the long-run if the Court had not taken the initiative in legalizing abortion in Roe.
Sunstein makes three arguments as to why Roe may be further proof of the "illusions of court-ordered progress." First, he points out that while Roe increased the availability and safety of abortion, it did not increase the number of abortions. Yet, this statistic only highlights the importance of the right to choose abortion, not Roe's lack of efficacy. If women had roughly the same number of abortions when abortion was illegal as they did after Roe, that only shows how serious a decision abortion has always been for women, and that, contrary to anti-abortion advocates, Roe did not lead to indiscriminate abortions for "convenience." The goal of the pro-choice movement has never been to increase abortions, but rather to allow women who choose to have abortions to do so in a safe and legal way. True, after Roe abortion remained, and still remains, inaccessible in many rural areas. But Roe gave Planned Parenthood the ability to organize services on a national level and thereby gave a major boost to nationwide accessibility.
Sunstein argues that Roe may have "prevented the achievement of political compromises" and that "it helped shift the political momentum to the anti-abortion movement." What political compromises? As Walter Dellinger explained so powerfully in these pages ("Should We Compromise on Abortion?" TAP, Summer 1990), every so-called compromise would deny access to many of the poorest and most vulnerable of women. The most sensible abortion compromise yet is the one in Roe itself, which millions of Americans find most reasonable: As a fetus becomes viable and capable of independent life, the state should have increased power to ban abortions.
Finally, Sunstein's third, and key, point is the notion that pro-choice forces were on their way to nationwide, political victory when Roe came down, simultaneously energizing the pro-life movement and sapping the strength of pro-choice forces. Roe did spur tremendous reaction on the anti-abortion side (especially from the Catholic Church), but a close look at the relevant history refutes the notion that Roe hurt abortion rights in the long run.
Although a handful of states had liberalized their criminal laws regarding abortion by the time the Court decided Roe, New York was the only state where a widespread political movement had led to legalized abortion. And legalization had passed in 1970 only by a one-vote margin achieved when a legislator switched his vote at the last minute. Yet, even in New York, the legislature voted to repeal the law only two years later in 1972, the year before Roe. Only a veto by Governor Nelson Rockefeller saved the right to choose abortion. This was the shaky state of the emerging pro-choice movement prior to Roe.
Many, including Sunstein, seek to buffer their "If Not For Roe" arguments by arguing that, since the pro-choice movement has been vigorous since Webster, it could have been equally successful politically without the help of the Supreme Court.
Yet, like Sunstein's analysis of Brown, or Justice Powell's "no harm done" comments about Hardwick, the argument that pro-choice political power would have been the same without Roe ignores the transformative effect of Roe itself on the personal and political perceptions of millions of Americans. Roe spurred the pro-choice movement. Prior to Roe, access to abortion was limited and stigmatized. The barriers particularly hurt the least powerful women: those who were poor, young, in abusive relationships, or in danger of jeopardizing their economic or social well-being if they had to go through with an unwanted pregnancy. Prior to Roe Americans did not think of the decision to bear or not to bear a child as a matter of constitutionally protected privacy.
Through Roe, the Court said to women, that the decisions affecting your liberty in the most profound ways are relevant to the "liberty" specified in the Fourteenth Amendment. By defining women's privacy as a liberty interest deserving constitutional protection, the Court read women's liberty into the Constitution and provided women with both the platform and legitimacy to argue that their concerns were a proper matter for public and political action. Thus, rather than impede the pro-choice movement, Roe helped to empower millions of women to see their private decisions, as Laurence Tribe writes in his recent book The Clash of Absolutes, not as a "dirty secret," but as a "right" worth fighting for.
Even if this political consciousness could have been created without Roe, what would have happened politically without Roe? Since Roe, women in every state have had substantial protection of the right to choose. How would a world without Roe have made things better? One of the major defeats pro-choice advocates have suffered since Roe involves Medicaid funding. It seems highly unlikely there would be Medicaid funds for abortions if Roe had never been decided. In fact, some of the states that do pay for Medicaid abortions do so on the grounds that the right to choose abortion is a protected constitutional right poor women cannot be denied. Even under the most optimistic "If Not For Roe" scenario, at least ten to fifteen states would continue to ban abortion, and many others would have likely imposed restrictions that hurt the most vulnerable women.
Sunstein's position might have appeared more tenable if a pro-choice majority had failed to awaken after Webster because supporters of the right to abortion had become so sleepily reliant on the courts. But the powerful pro-choice mobilization after Webster shows that the courts did not undermine the pro-choice movement. In fact, Roe had a profoundly positive effect on the long-term political support for the right to choose.
I should emphasize that I am not trying to replace Sunstein's optimism (we can still make progress on civil rights even with a bad Supreme Court) with my own pessimism (we can make no progress on civil rights with a bad Supreme Court). But we mislead ourselves if we do not fully appreciate how and why the Supreme Court has been essential to advancing civil rights. If the Supreme Court has been vital to political progress for disfavored groups by forcing institutions and individuals to reconsider discriminatory social habits, what will be the source of that moral leadership in the future? Recognizing the deep void now left by today's conservative Court tells us what we must demand of others -- the President, powerful members of Congress, state supreme courts, governors, and civic leaders. Several state supreme courts have, for example, almost singlehandedly kept school financing on the national agenda through their interpretations of state constitutions.
I should also stress that I am not advocating that the Supreme Court should declare rights for the purpose of promoting political action. The Supreme Court's job is to interpret the Constitution -- nothing more and nothing less. But neither the Court nor those who observe it should feel that a proper constitutional decision on behalf of individual rights is worthless or meaningless simply because the Supreme Court does not have the weapons to turn its words into instant reality.
One way or another, what the Court says and does has a broad effect on the values and long-term direction of our society. The Supreme Court has a special power to rise above the PACs, soundbites, and mean-spirited stereotypes and declare what America would have to be to adhere to the highest ideals expressed in our Constitution. Sometimes, through a multitude of pressures, tensions, and political and private acts, noble words spoken by the Court can move us toward a more free and just society.
Cass R. Sunstein responds:
What is the appropriate role of the Supreme Court in producing social reform? For those interested in such reform -- in areas including environmental controls, the social security system, civil rights, and criminal justice -- how much reliance should be placed on the judiciary? At least in part, these are empirical questions rather than ones of value and policy. We need to know whether an aggressive judicial role actually accomplishes its intended purposes; whether it might mobilize opposition or demobilize support; whether it has harmful consequences for democracy and the practice of citizenship. These questions depend on the facts, not only on our aspirations.
For too long, those who study the Supreme Court have let their aspirations cloud their approach to the facts. This problem is especially serious for those who believe that the role for the Court charted out in Brown and Roe deserves to be repeated frequently in the next generation. Let there be, they are saying, one, two, three, a thousand Browns.
Gene Sperling's thoughtful comment contains many empirical claims about the real-world effects of Supreme Court decisions. He says, for example, that the successes of the civil rights movement depended on Brown; that "the Brown Court's declaration of rights" had "tremendous power" in creating the political and moral climate for that movement; that Brown "compelled white Americans to acknowledge the hypocrisy of" the "rights-reality gap and created a positive tension pressuring other institutions to respond"; that Brown "provided the basis for critical political victories"; that Bowers v. Hardwick significantly contributed to anti-homosexual feelings; that Roe had a "transformative effect" on the "personal and political perceptions of millions of Americans"; indeed, that Roe "spurred the pro-choice movement."
These claims, and Sperling's others about the consequences of Supreme Court decisions, may actually be true. But I do not know whether they are. I wonder what makes Sperling so confident about them.
We might begin with Brown. The only extended study of Sperling's claims strongly suggests that they are wrong. I cannot do justice to the detailed analysis of Gerald Rosenberg's forthcoming The Hollow Hope, but I can explain how Rosenberg casts doubt on the view that Brown paved the way for the civil rights movement. Above all, Rosenberg reveals that Sperling's claims that Brown indirectly caused and helped legitimate the civil rights movement, and that it exerted moral pressure and produced attitudinal changes on the part of whites, have little or no empirical support.
Rosenberg reveals, among other things, that the public civil rights pronouncements of Presidents Eisenhower, Kennedy, and Johnson did not refer to court decisions at all; that the Montgomery bus boycott was not attributable in any way to Brown, and indeed that black protests, there and elsewhere, were not directly or indirectly spurred by Brown; that there was no increase in media coverage of civil rights issues in the years following Brown; that there is no serious evidence that Brown inspired or even especially influenced Martin Luther King, Jr. and other civil rights leaders; that the number of civil rights bills introduced into Congress actually dropped in the years immediately following Brown; that Southern disapproval of desegregation immediately after Brown, and seven years after Brown, was about the same, thus weakening the suggestion that Brown exerted moral pressure on white Americans (a suggestion that incidentally cannot find support in opinion surveys or any other measures of white opinion); and that there is little evidence that Brown contributed to the civil rights acts of the 1960s -- especially in view of the fact that there were few references to the decision in the many thousands of pages of congressional debate.
It is relevant here that Martin Luther King himself argued, both by his example and in public speeches, against excessive reliance on the judiciary. According to King, "[W]e want to avoid court cases in this integration struggle," and an emphasis on litigation was "hampering progress to this day." For King, blacks "must not get involved in legalism," since in litigation "the ordinary Negro was involved [only] as a passive spectator." For King, Montgomery demonstrated that blacks themselves could act to advance civil rights, "rather than relying exclusively on lawyers and litigation to win incremental legal gains."
All this does not mean that Sperling is necessarily wrong. It is exceedingly difficult to ascertain what the world would look like if a seemingly important event -- like Brown, or Roe, or World War II -- had not happened. But the available evidence does suggest that Sperling's claims about the influence of the Brown Court may be articles of faith.
The same, I think, is true for his claims about Roe and Hardwick. Of course, Roe increased women's access to safe abortions, and that was extremely important; and the Hardwick Court's decision to allow sodomy prosecutions was important insofar as it has been taken to permit state officials to discharge gay people from employment. It is even possible that Roe created a political consciousness for women seeking an abortion right and that it helped fuel the pro-choice movement. But about both Roe and Hardwick, I do not think that one can say anything much more confident than this. Many of Sperling's claims here strike me as quite speculative.
What does seem clear is that the overall consequences of the Roe decision for sexual equality in the United States are ambiguous. That decision did, after all, help create the Moral Majority, elect officials hostile to the women's movement, defeat the Equal Rights Amendment, and demobilize potential support. What seems unproved and even doubtful is the view that Roe had a transformative effect in increasing the perceived legitimacy of the practice of abortion, and that Hardwick legitimated homophobia. Indeed, the opposite claims may well be true. In many places, the ultimate consequence of Roe may well have been to decrease and to stigmatize the legitimacy of abortion. And the large public outcry that followed Hardwick may have played some role in spurring gay rights groups and forcing Americans to confront and perhaps to change discriminatory beliefs and practices. Sperling's suggestions about the legitimating power of Supreme Court decisions seem to me insufficiently grounded in evidence.
My own claims about the consequences of Supreme Court decisions, here and in my original essay, are quite modest. I do not doubt that Supreme Court decisions often have important effects. I do not deny that the Court has often introduced valuable changes into American society. I do not believe that an independent judiciary is a marginal or irrelevant part of American institutions. I do not believe that Brown, Roe, and Hardwick have not mattered. I am not even certain that Sperling's claims about the consequences of these decisions are false. I suggest only that because of its institutional position, the Court is considerably less effective than is usually thought. Whether a Supreme Court decision will be effective in producing social reform depends on a wide range of complex factors difficult to assess, especially in advance. Those reformers who face up to the often-surprising facts may want, therefore, to hesitate before using the Court as their institution of choice.
My strong hunch is that Sperling's views may stem partly from the following strategic concern. Those who question the efficacy of Supreme Court decisions may be helping to legitimate the Supreme Court's narrow, cautious view of civil rights. That strategic concern will seem especially pressing to Americans who, reared on the Warren Court, see the judiciary as the best hope for rights and politically disfavored groups. But that strategic concern should not deflect us from a patient, dispassionate, and clear-eyed view of facts. If the case for effective social reform through the judiciary is weak, surely that is an important thing to know.
In any event, the era of the Warren Court has long been over. While a modern-day successor to that Court might have been able to accomplish considerable good, current reformers clearly cannot rely on the federal judiciary for social change in the interest of the causes Sperling appears to favor.
More fundamentally, people interested in social reform, understood broadly, ought to be interested in the process of government as much as the outcome. For all the advances that it spurred, the Warren Court period was a historical aberration, and it should hardly be thought to represent the inevitable or even the best state of constitutional democracy in America. One of the most important lessons of the last generation is that the substitution of adjudicative for democratic processes is often an ambiguous good from the standpoint of both process and result. The next generation might do well to attend more closely to Martin Luther King's words, and example, on these questions.