“Addicted to the Courts” — a Reminder to Liberals, Libertarians, and Conservatives:

NYU law professor Burt Neuborne — who has been, among other things, National Legal Director of the ACLU and Special Counsel to the NOW Legal Defense and Education Fund — warns his fellow liberals in an article in The Nation not to rely too much on victories in court. He writes:

In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning. Three examples suffice.

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. . . . The progressive response [to pro-life criticism] was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. . . .

The gay rights movement, winner of a great judicial victory in Lawrence v. Texas, when the Supreme Court invalidated criminal sodomy laws, immediately redoubled its judicial bets by challenging laws banning same-sex marriage. That may be good law, but it’s terrible politics. A grassroots movement designed to explain why it’s unfair to deny gays the ability to live together in stable relationships would result in widespread support for legally protected civil unions and pave the way for popular acceptance of same-sex marriage. Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.

Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it’s fundamentally fair to do so. Legalistic arguments simply do not convince many well-meaning people who feel cheated when their religious symbols are banned. Nor do claims that onlookers are somehow harmed merely by viewing such symbols, as long as everyone has an equal right to have the symbol of his or her choice, including symbols of atheism, displayed. We don’t allow secular speech to be banned because it offends onlookers. Why should religious symbols be subject to “heckler’s veto”? Thus, unlike abortion and gay rights, where powerful fairness-based arguments exist in defense of judicial decisions if only we would deploy them, I’m not sure that in this case a persuasive fairness rationale exists.

Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic–which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance. The margin of victory in the 2004 presidential election may well have come from religious believers in Ohio who voted against their economic self-interest to protest judicial decisions that appeared to them to attack their belief systems without good reason. . . .

One can argue about some of the details — for instance, while I noted the Ohio possibility myself shortly after the election, it’s now far from clear that this is indeed was the reason for Bush’s margin of victory in Ohio. (Plus, of course, while I’m not wild about all of the Republicans’ economic policy, I think that they are in the best interests of most Americans, though obviously liberals like Neuborne generally disagree.)

Nonetheless, the broader point, I think, is quite right, and it’s one I make to conservative and libertarian friends who put too much stock in winning constitutional rights battles — gun rights, campaign speech rights, property rights — in court. Why should we focus on politics rather than litigation, they ask, when there’s a fundamental constitutional right at stake? Isn’t the point of the Constitution to secure certain principles from political attacks?

To quote the flag salute case, West Virginia Bd. of Ed. v. Barnette, wasn’t “[t]he very purpose of a Bill of Rights . . . to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”? Shouldn’t it be the case that “[o]ne’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”?

Well, maybe this is true in some world where the Bill of Rights somehow implements itself, without the need to be interpreted and enforced by real human beings, who — being social creatures — are necessarily influenced by the views of those around whom they live, those who taught them (whether teachers, parents, or others), and those with whom they grew up. But in our world, it is at most an aspiration, not an accurate description of political reality.

Winning in court is generally good — but there’s no substitute for winning elections, and for persuading the public more broadly. Any victory that’s only a victory in court is not likely to last long, at least on the important issues that are likely to remain in people’s minds. Neuborne is right to remind his side about this; I hope people on my side (generally libertarians and, on many issues, conservatives) remember this, too.

UPDATE: David Kravitz (BlueMassGroup) makes a similar point about gay marriage, and discusses the Connecticut civil unions bill:

“[T]he Connecticut legislature appears to be on the fast track to adopting a civil unions law that will give gay couples all the rights and privileges of marriage under Connecticut law, except that it won’t be called “marriage.”

The important thing about the Connecticut story is that, if the proposed law passes, Connecticut will be the first state to adopt a gay marriage or marriage-equivalent law without having had a court tell it do so. In other words, it will be the first time that the people’s elected representatives have decided that granting full marriage (or marriage-like) rights to gay people is what they should do, rather than what they must do. That’s a really, really big deal.

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