Is Judicial Review Good for the Left?
Tushnet, Mark
pOLITICAL SCIENTIST Peter Irons once wrote a book about people who took their constitutional claims to the Supreme Court. They included Mary Beth Tinker, who successfully challenged her school...
...During Burger's tenure, Republicans as a party were divided over the claims asserted by the organized women's movement...
...The Court again upheld about thirty free speech claims...
...Simultaneously, abortion-rights opponents began to mobilize against both reform and repeal...
...Acting against a real national majority...
...Brown v. Board of Education stands as a powerful objection to critics of judicial review: the Court appears to have accomplished something that neither Congress nor the president could have, constrained as they were by politics...
...Almost all the cases involved classic free speech problems: political protestors, "subversive" activities, criticisms of government...
...By 1954 segregation was an embarrassment to elites concerned with how the United States looked to the rest of the world...
...Even ones that were unpopular when made rapidly settled into public consciousness as permanent fixtures in our constitutional scheme...
...The Court's actions fall into two broad classes...
...Their political agenda shifted to repealing all anti-abortion laws...
...Not all who call themselves liberals today are reluctant to use the government's power in this way...
...If we let them erode in connection with campaign finance regulation, there's a risk that the revised principles will be applied to core political speech...
...Again following the election returns, the Supreme Court has shifted gears...
...By the early 1970s states had begun to adopt modern abortion laws, allowing abortions to protect the woman's life or health...
...Such choices can have important and good consequences when the Court chooses the right side, as it did in Brown...
...We will not consider manuscripts submitted simultaneously to several publications...
...WHY DO liberals still seem to like the Court...
...To Our Contributors A few suggestions: (1) Be sure to keep a copy of your manuscript...
...Please use inclusive language so that we don't have to make adjustments during editing...
...Dealing with "outliers...
...A political system with one part consistently at odds with other parts, he argues, would be a system routinely In crisis...
...0 ONE should be surprised that the Supreme Court follows election returns...
...Adapting a metaphor from electrical engineering, we can say that judicial review basically amounts to noise around zero...
...In stable political systems, the courts and the other national political organs will be in rough correspondence most of the time...
...There the Court may have acted against a regional majority at odds with national political elites...
...Dooley, comment on a controversy over whether U.S...
...2) Please don't write to ask whether we're interested in such and such an article—it makes for useless correspondence...
...Whatever its effects were, we know that it did not transform the material conditions in which most AfricanAmericans live...
...Now the Court's anti—affirmative action decisions are central...
...Liberals cannot like that idea...
...But there were enough Republicans on the Supreme Court responsive to those claims to make it relatively easy for the Court as a whole to develop women as a constituency of support...
...The Court's decisions made it possible for middle-class women accustomed to navigating their way through complex regulatory schemes to obtain abortions when they wished...
...People rarely go to court unless they are pessimistic about what they can accomplish through political action...
...Typically they like to use government power to ameliorate the effects of economic power on the distribution of food and housing...
...Judicial review is not meaningless, but the differences it makes are rather small...
...Irons called his book The Courage of Their Convictions...
...But that depends as much on the election returns as on the initial decision itself...
...But, according to Bickel, its successes lay in guessing right about a future that was going to happen no matter what the Court did...
...Graber argues that the abortion decisions resulted from legislative deferral of decision to the courts: politicians "encouraged judicial resolution of an issue that threatened existing partisan alignments," splitting traditional country-club Republicans from newer socialissue Republicans, and dividing elite Democrats from their traditional working-class, Catholic, and union allies...
...As we're not an academic journal, we prefer that they, wherever possible, be dropped altogether or worked into the text...
...Margaret McIntyre, the pamphleteer, Margaret Gilleo, the protestor against the Gulf War, and Joey Johnson, the flag-burner, might someday appear in a new version of Irons's book...
...The future had arrived by 1996, and the Court was so embarrassed by its earlier decision that its opinion in Romer simply did not mention Bowers...
...A defender of judicial review might attribute these political changes to Brown...
...Dooley's terms: the Court was following the election returns, although the election returns in the 1970s and 1980s were sufficiently unclear that the judges had some space to pursue their own political agenda...
...According to Dahl, the Supreme Court never holds out for an extended period against a sustained national political majority...
...In recent years it's given just enough to about every interest group to keep nearly everyone satisfied with judicial review: women (VMI), gays (Romer), businesses (property rights cases), the major parties (campaign finance decisions...
...The ACLU argument is that we have to defend free speech for businesses to make sure that it will be available to political protestors...
...The justices are members of a cultural elite, and they are likely to see the future moving in the direction the elite wants...
...But overall, what we get from the Supreme Court is pretty much what we get from politics generally...
...And, if commercial advertising and campaign finance cases deal with issues with greater social impact than the distribution of anonymous pamphlets, free speech protection tilts somewhat—not strongly, but somewhat— to the right, aiding people who are already DISSENT / Winter 1998 • 65 pretty well fixed for political and economic power...
...The Warren Court, during its peak years of 1963 to 1968, upheld free speech claims in about thirty cases...
...Contrast that with the cases decided from 1989 to 1996...
...None of those perceptions is accurate...
...Many liberals have warm and fuzzy feelings about judicial review...
...African-American participation in the national political process has not eliminated discrimination or the disproportionate poverty affecting the African-American community...
...But we'll get better judges only if we have better politics...
...We probably can't tell whether judicial review benefits progressive and liberal causes more than it harms them because judicial review doesn't make enough difference to matter...
...The Supreme Court is structured to keep it roughly in line with the dominant national political coalition (if there is one...
...The Court could do worse than follow the views of cultural elites if it wants to predict the future...
...The Court now uses free speech to protect business interests —and not just media enterprises...
...Political scientist Martin Shapiro points out that courts everywhere are parts of national political systems...
...Republican leaders exploited these emerging divisions...
...With the nation divided over abortion, the Court came down in favor of more extensive reform...
...Brown is a good example: The Court acted to support one side in a national debate, seeing correctly that the advocates of desegregation were right not only about the immorality of segregation but also, and in Bell's view more important, about the interests of white Americans...
...If there's a delay, it's because a few editors are reading your article...
...The American Civil Liberties Union (ACLU) member can say, "We know that a lot of free speech law today gets in the way of the liberal political causes we also favor...
...And not infrequently, it succumbs to shortterm pressures that have led to some of our most distressing constitutional episodes...
...But we have to be vigilant in protecting free speech principles...
...But nothing guarantees that the Court will always do so...
...And it's worth noting that people on the left elsewhere in the world have been able to articulate an agenda of advancing fundamental rights, including rights that aren't important parts of the U.S...
...And please remember that we can't consider articles unless they're accompanied by a stamped, self-addressed envelope...
...A Court that eliminates them plays an interesting political role but, precisely because the laws are "petty," hardly a major one...
...Romer was not a decision outside the mainstream...
...They included Mary Beth Tinker, who successfully challenged her school board's policy barring her from wearing a black armband to protest the war in Vietnam, and Barbara Elfbrandt, a Quaker teacher who refused to take an oath supporting the Constitution...
...Sometimes they use the courts to test the political waters...
...The Warren Court's successful decisions rested on good predictions...
...The Political Tilt of Free Speech Law In the 1960s free speech protection tilted fairly strongly to benefit liberals and critics of the government...
...The limitations of judicial review were given their classic expression by the journalist and humorist Finley Peter Dunne...
...National public-opinion surveys showed high levels of support for the proposition that employers should not discriminate against gays and lesbians...
...MARK TUSHNET teaches constitutional law at Georgetown University Law Center...
...forces occupying Puerto Rico and the Philippines in the 1890s had to comply with the Constitution...
...Margaret McIntyre might be in trouble if she had to depend on the good will of the state legislature, but surely not the Republican Party...
...He was puzzled by the fact that the Court seemed to be getting away with its decisions...
...And yet, one thing that gives a cultural elite its status is precisely the power to shape the future...
...Why do liberals still celebrate the First Amendment when it benefits their political opponents...
...And if we have better politics, we might not need better judges after all...
...Does judicial review help in dealing with these problems...
...A closer look at what the Court actually does should qualify liberal enthusiasm...
...If we treat campaign finance as something the government can regulate to equalize contending voices in the society, we might end up with a government that was able to restrict the use of public spaces, streets and parks, again purportedly to promote equality...
...Its strength in elite circles results from savvy constituency building...
...Things would be different, of course, if we had better judges...
...The Court's decisions might accelerate the pace of change a bit...
...Bickel's argument explains the decision in Romer v. Evans (1996), which held unconstitutional a Colorado provision barring the state or any city from banning discrimination on the The Supreme Court has been reasonably active in support of women's claims, but most of them have been statutory claims, once again showing that women, like African-Americans, have become significant participants in ordinary politics...
...It thus seems appropriate that the major constitutional victory for women in the 1990s has been a decision finding unconstitutional sexsegregated public education at Virginia Mili68 DISSENT / Winter 1998 tary Institute, one of only two such institutions that remained operating.* • Acting for national politicians...
...Supporters of the Soviet Union pointed to southern apartheid to demonstrate that the "really democratic" Soviet system was superior to the fake democracy in the United States...
...Perhaps someone writing a book like Irons's today should call it The Color of Their Money...
...Keeping "rights" on the agenda...
...Yet there's something to the neoliberal idea that, as Mary Ann Glendon puts it, we have too much "rights talk" going around...
...Sometimes the courts deviate a bit, occasionally leading to better political outcomes and occasionally leading to worse ones...
...Check all your figures, dates, names, etc.—they're the author's responsibility...
...They also allowed states to make it more difficult for less well-off women to do so, most dramatically by accepting the legality of state bans on public funding for abortion...
...As the question was put at the time, Did the Constitution follow the flag...
...They were "country club" Republicans who accepted the basic contours of the New Deal and the welfare state, were concerned about the fiscal consequences of New Deal policies, and, notably, could identify the claims made by the organized women's movement with their own class interests...
...The Court, Bickel said, sometimes took on the task of predicting the future...
...African-Americans were an important political force in the national Democratic Party and influenced national policy...
...Liberals with this view may think that the Supreme Court under Earl Warren—who left the Court in 1969—is the Supreme Court today...
...history, we see that the courts have regularly been more or less in line with what the dominant national political coalition wants...
...Many people think we need courts to protect free speech because the Mary Beth Tinkers and Barbara Elfbrandts are not able to protect themselves...
...No dot matrix submissions, please...
...Dunne had his alter ego, Mr...
...Justice Antonin Scalia's dissent in Romer excoriated the majority for enacting the views of a cultural elite...
...The relation between Griswold and the abortion cases suggests, however, that decisions wiping aberrational laws off the books may have broader effects...
...Constitution, without becoming acolytes of judicial review...
...Within a few months of the Court's decision, a Republican-controlled Senate came within one vote of adopting the Employment Nondiscrimination Act to bar such discrimination...
...Or take a chance and send us your article...
...The political outcome was a shift in the presidency from Democratic to Republican control...
...The disintegration of the New Deal coalition freed up political space, but during Burger's tenure—and perhaps to the present—no alternative appeared on the scene...
...Country club Republicanism accounts for the pattern of the Court's decisions in abortion cases...
...The supposedly more conservative Rehnquist Court modified the decisions but expressly reaffirmed the "core holding" of Roe v. Wade...
...This argument depends on the way the Court generalizes its protection of free speech for the powerful...
...The abortion cases show the Supreme Court acting on behalf of a latent national political majority even though the 1973 decisions invalidated abortion laws throughout the nation...
...That gave the Court an opportunity to develop its own constituency of support...
...Law professor Alexander Bickel was a critic of the Warren Court's aggressive judicial liberalism...
...Or they may think that the Court's recent performance is a mixed bag, but still beneficial to liberals on balance...
...What the Court Does Judicial review is often the last resort of a social and political movement that lacks political power...
...But abortionrights advocates were increasingly disillusioned with their experience under these reform laws, which, they believed, set up an obstacle course that only middle-class women could get through...
...Some of the cases involved traditional claims: a political pamphleteer who distributed a pamphlet anonymously, a woman who wanted to hang a flag protesting the Gulf War from her window...
...The Supreme Court often acts for a national political majority that has not yet worked its will through legislation by invalidating statutes well out of the national mainstream...
...Use WordPerfect 5.1 or standard text ASCII format, and send us the disk...
...Why shouldn't they be willing to use government power to ameliorate the effects of economic power on the distribution of ideas?* Most liberal defenders of free speech defend it because they think that free speech protections help liberals...
...In doing so it articulates a legal doctrine that has effects as a precedent—at least if a later court decides to treat it as a precedent...
...The time lags built into the Court's structure extended the Warren Court era into the 1970s...
...But Griswold is hardly an example of the Supreme Court acting against the will of the people of the United States...
...Just about the only significant interest group to which the Court has consistently given the back of its hand in the 1990s is African-Americans...
...Acting for a national political majority...
...The decision was badly received among elites at the time...
...Here's the explanation...
...True, the national elite was divided, and some—including President Dwight Eisenhower—were only lukewarm about desegregation...
...TliE EDITORS 70 DISSENT / Winter 1998...
...When it was decided, only two states banned the use of contraceptives...
...By the 1990s the transformation of American politics that began with Richard Nixon's presidency produced a Supreme Court whose moderate centrism corresponded almost precisely to the national center of political gravity...
...Judicial review must help these people—or so liberals think...
...Later studies have qualified Dahl's conclusions by stressing the importance of the words extended, sustained, and national...
...On race discrimination law, it is enough to note that Brown no longer is the central case dealing with race...
...Political scientist Mark Graber has identified another way the courts respond to national politics—or, more precisely, to national politicians...
...The Court upheld the internment of Japanese Americans during World War II, and its overall performance in the McCarthy era, though illuminated by a few bright spots, was generally dim...
...Sometimes it has acted against those who persisted in policies that a strong national majority rejected...
...By the 1960s the New Deal political coalition had controlled national politics for so long that the Supreme Court's justices were simply another part of that coalition...
...But Congress could not act...
...But remember that the Court follows the election returns...
...3) Type your ms double-spaced, with wide margins...
...A half-century later, political scientist Robert Dahl examined the Court's record more systematically, and came to roughly the same conclusion...
...Republican presidents appointed relatively conservative justices to the Court...
...5) We're usually quick in giving editorial decisions...
...AfricanAmericans gained political power, according to this defense, because they had won their constitutional case in Brown...
...It now uses the rules it developed to assist African-Americans to strike down affirmative-action programs...
...the Court noticed an emerging trend, and then endorsed it...
...In a slightly different context, Justice Robert Jackson wrote that the aberrations "are individually too petty, too diversified, and too local to get the attention of a Congress hard pressed with more urgent matters...
...African-Americans were increasingly unwilling to accept Southern apartheid, and some sort of civil rights movement was probably inevitable...
...The Court in Griswold v. Connecticut (1965) found that Connecticut's ban on using contraceptives infringed on a constitutionally protected right to privacy...
...But a libertarian court is going to generalize differently: instead of saying "Protect free speech here, there, and everywhere," the libertarian court will say, "Keep the government out of here, there, and everywhere...
...The Court's abortion decisions were made by the supposedly conservative Burger Court...
...Eliminating segregation would advance the national interest by combating these arguments...
...Today that tilt is not nearly as strong...
...wOMEN BECAME such a constituency...
...No matter how one comes out in the end, it seems reasonably clear that Brown is not a strong demonstration of how the Court can bring about change on behalf of those who lack political power...
...Some politicians will climb aboard the courts' bandwagon to get the support of people who agree with the courts' decisions, and others can attack the courts for taking the issue away from the people who wanted some other outcome...
...Since 1976 the Court has developed an extensive set of rules that severely limit our ability to regulate campaign financing...
...A decade before Romer v. Evans, the Court upheld state laws making homosexual sodomy a crime (Bowers v. Hardwick, 1986...
...And their steady migration to the North made their votes more important to the national political parties...
...How could this happen...
...It seems to me barely possible that letting the courts reinforce that idea is generally a good thing for liberals, even when the rights the courts actually implement are not ones liberals like...
...After the Supreme Court decided that only a few constitutional limitations applied, Mr...
...By 1970 the political obstacles to enacting federal antidiscrimination laws had essenDISSENT / Winter 1998 67 tially disappeared...
...The Supreme Court and Election Returns What can we say about judicial review in more general terms...
...And sometimes it chose sides when the nation was closely divided...
...Sometimes national politicians notice a "no-win" issue: no matter what position they take on the issue, they will lose politically...
...Of course the Court does not have a perfect crystal ball...
...It is buffered a bit against short-term swings in popular sentiment, and it is sometimes more responsive to elite views than to popular ones...
...Once again we can understand the Court's decisions in Mr...
...The reason is that a national majority believes that such policies would be too expensive...
...They hope that the Supreme Court will give them victories they cannot win in the political arena...
...Somehow, though, that no longer seems quite right...
...66 DISSENT / Winter 1998 The U.S...
...Predicting the future...
...basis of sexual orientation...
...But then there are all the other cases...
...But with those qualifications Dahl's conclusion remains accurate...
...Of course every time the Court upholds a constitutional claim it reinforces the idea that concern for fundamental rights ought to be an important DISSENT / Winter 1998 69 part of our political discourse...
...6) Please bear with us—we have accumulated quite a backlog of material, and you may have to wait for a few issues before you see your article in print...
...In probably the most famous case, the Court held unconstitutional laws banning flag-burning as a form of political protest...
...Supreme Court is likely to fit in with the national political majority, with something of a time lag, particularly when that majority sustains itself over an extended period...
...The point to note here is that judicial review has not addressed these problems either...
...Do liberals still occupy that heartland...
...It was organized on the basis of seniority, which meant that long-serving members from the one-party South could block antidiscrimination legislation...
...Look at our last few issues to see if your idea fits in...
...Democrats simply had to accommodate women's interests in the general pluralist bargaining that characterized the Great Society...
...Dealing with regional majorities: Brown is more interesting...
...Recently the winners in important Supreme Court cases upholding First Amendment claims have been James Buckley, a former United States Senator now a federal court judge, the Colorado Republican Campaign Committee, and the First National Bank of Boston...
...The unanswerable question is whether political change would have occurred without Brown...
...The Supreme Court, after all, has to explain why an unusual regulation is unconstitutional...
...The Warren Court responded to the interests of the New Deal coalition, but by the early 1970s that coalition began to fracture into interest groups competing with each other for shares of a no-longer-expanding economic pie...
...Looking at judicial review over the course of U.S...
...The heartland of liberal affection for the Supreme Court is free speech law and the recollection of Brown v. Board of Education...
...The Court's decision in Brown is best understood as enforcing the national elite's view against a regionally dominant position that had excessive power in Congress...
...The Court guessed where the country was going, and got in front...
...It offers essentially random changes, sometimes good and sometimes bad, to what the political system produces...
...Brown is important in another way...
...Or they may think that the Court's recent conservatism is a deviation from the Court's historic role...
...As law professor Derrick Bell has pointed out, the Court typically has acted to benefit African-Americans only when African-American interests converged with the interests of whites...
...If you are submitting to Dissent electronically, our e-mail address is dissent@igc.apc.org . (4) Notes and footnotes should also be typed double-spaced, on a separate sheet...
...The hypertrophy of rights talk may actually diminish our attachment to those fundamental rights to which liberals are truly attached...
...The Court's recent history belies the claim that judicial review makes a big difference in defense of liberal political positions...
...It seems quite likely that something would have happened anyway...
...Suppose the Court protects free speech because its members have libertarian views and oppose government regulation of anything...
...Dooley said, "No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns...
Vol. 45 • January 1998 • No. 1
