Many observers have criticized the approach of using litigation to achieve social change ever since a Hawaii court ruled in 1993 that the denial of marriage benefits to same-sex couples was unconstitutional—criticism that only accelerated after Massachusetts's landmark Goodridge decision in 2003 ruling that bans on same-sex marriage are unconstitutional. Much of this criticism takes the form of what I call the "countermobilization myth"—that is, the idea that victories won through the courts produce unique amounts of political backlash that make them counterproductive. The remarkable wave of success for LBGT rights on Election Day, combined with a steady increase in support for same-sex marriage, makes the countermobilization myth even more untenable. Michael Klarman's invaluable new book, From the Closet to the Altar, remains somewhat ambivalent about the use of litigation to advance same-sex marriage. But ultimately, it provides a powerful case that in the right circumstances, litigation can be an effective tool for social reform.
On March 7, 1965, peaceful protesters advocating for the right to vote were brutally attacked by Alabama authorities. A little more than a week later, President Lyndon Johnson declared in a message to Congress that "experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books ... can ensure the right to vote when local officials are determined to deny it." LBJ subsequently introduced legislation that would provide an effective right to vote, the Voting Rights Act (VRA) of 1965. Less than 50 years later, the Supreme Court appears poised to cut out the heart of one of the greatest triumphs of the civil-rights movement.
Should it be surprising President Obama has largely maintained the support of the left of the Democratic Party? According to a number of critics—notably Matt Stoller and David Sirota of Salon—the answer is yes. Essentially, this contrarian case depends on obscuring two crucial truths:
When the Bush administration decided to wiretap some suspects without a warrant, it was acting contrary to the procedures that had been established by Congress Foreign Intelligence Surveillance Act (FISA). Unfortunately, Congress reacted to this lawlessness by passing the Protect America Act, making warrantless wiretaps of communications involving at least one party not in the United States easier while providing immunity for past instances of illegal wiretapping. However, the new statute does not settle all of the legal questions.
Greg Miller has an essential report in TheWashington Post about the institutionalization of the "war on terror," revealing that the Obama administration is institutionalizing many of the worst aspects of the arbitrary death apparatus established by the Bush administration.