“Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” This is a tag from Alexis de Tocqueville’s monumental Democracy in America, published well over 150 years ago.
This is only half the story, however, as scarcely any judicial question arises that isn’t, sooner or later, turned into a political question.
Activists on the left and the right are often unduly focused on the courts, generally expecting far too much from judges, and then invariably overly outraged when they’re disappointed. I think a lot of this has to do with a mythic misunderstanding of the most familiar Supreme Court decision in America, Brown v. Board of Education.
The most appealing way to understand that iconic decision is to see a Supreme Court, led by the politically savvy Earl Warren, recognized a social injustice (racially segregated schools) and an error in Constitutional interpretation (Plessy v. Ferguson), and fixed them both with a unanimous decision.
Activists love that version of the story, because it suggests that justice will prevail, even in the absence of popular support, political resources, or sustained activism. This is the wrong reading of Brown and the history of segregation in America, and teaches exactly the wrong lessons to activists today.
Today’s lesson is that a judicial decision doesn’t end the political conflict. (Steve Boutcher and I published this argument in longer form a few years ago.)
This week, courts handed down decisions that pleased and infuriated political activists.
Wisconsin circuit court judge Maryann Sumi struck down the extremely controversial provision in the state’s budget that eliminated almost all collective bargaining in the state. It wasn’t about the content of the legislation; rather, in the haste to handle a resistant Democratic minority, the legislature’s Republican majority violated Wisconsin’s open meetings laws. (On the political battle, see earlier entries, including here.)
But that case will percolate up through Wisconsin’s courts to an increasingly politicized state supreme court, which might rule differently. Even if not, Governor Walker still enjoys substantial majorities in the state legislature–although recall elections are on the horizon–and can pass the bill again. It’s not that the respite provided by the court doesn’t matter, it’s just that it doesn’t end the larger political battle.
Meanwhile, the United States Supreme Court upheld a provision in a 2007 Arizona law that provides strict penalties for employers found to hire undocumented workers. They’re required to use E-Verify to vet their workers. The 5-3 ruling turns on technical assessments of E-Verify’s reliability and interpretations of the text of the Immigration and Reform Control Act of 1986. On these points, and on many others, the well-educated and well-intentioned Supreme Court justices differ.
This ruling IS NOT about Arizona’s more recent, and even more provocative immigration legislation, nor does it provide a reliable prediction of how the Court will rule on that issue–when it reaches the Court. The laws are different, and the personnel and politics of the Court could easily be different by the time that case is argued.
Of course, it’s not just the immigration issue percolating up to the Supreme Court. This week, a federal judge in Virginia ruled that corporations can make direct contributions to political campaigns. Activists also wait, with a mix of optimism and dread, for cases about same sex marriage and mandatory health insurance to reach the Supreme Court, scrutinizing every sigh in oral argument and looking for signals.
No judicial decision on any of these matters is going to put the issue to rest; rather, it will provide a target and stepping stone for, uh, more politics. Brown appeared at a relatively early point in the modern civil rights movement’s history–before Rosa Parks refused to move, and lots of contested politics followed. And lots of schools remained (and remain) essentially segregated, if not by statute. Nor did Roe v. Wade resolve the issue of abortion rights; it provided a basis for much more litigation, activism, and very polarizing politics–up to, at least, this point, nearly 40 years later.
The savvy activist knows that the judiciary is a place to make claims, and that a decision (good or bad) can be useful in raising money and mobilizing the base. But it’s only one place.
I think the same can be said about the way in which social movements rally around pieces of legislation or even during elections. Politics is more than wins and losses through institutionalized channels. Interestingly, social movement leaders should have a keen understanding of how “politics” operates after victory or defeat in judicial, legislative, or electoral arenas. The difficulty, I would guess, is in keeping active during the periods when the “target” or goals are not quite as clear. What strategies might work best for social movement leaders when the battle lines aren’t as clearly drawn?
Yes, but there’s an important difference. The tools for winning in a state legislature or Congress are all about mobilizing numbers–of people and dollars. The illusion is that by working through the Court, you can win a substantial and lasting victory through the strength of argument–without those other, explicitly political, resources.
I agree completely with what you are saying, but how does this illusion diffuse among social movement leaders? I think the discussion of spillover is important, but it seems to remain at the more general level. Maybe it would be interesting to explore the specific mechanisms that allow for such spillover.
I say that because the particularly savvy social movement leaders should be (doesn’t mean that they are) aware of the confluence of factors that allowed for the landmark decision in Brown. One not mentioned in your article with Boutcher is the particularly liberal nature of the Warren Court. On a structural level, the composition of the Supreme Court at the time made a victory through the court more likely, with the Roosevelt/Truman appointees.
Given the changing nature of the courts more recently, why does this illusion or allure of the courts remain in tact, especially since it seems that political opportunity for liberal reforms through the courts is closing or at least the costs are higher, as you and Boutcher point out? I think this is the question that you are asking yourself.
This might be a stretch, but do you think that our increasing emphasis on the cultural dimensions of social movements affects the tactics that are adopted by activists or social movement leaders? In other words, by paying attention to and studying frames, signals, and repertoires, do we end up focusing on the cultural aspects of social movements at the expense of structural constraints or opportunities? Do we end up privileging the process over the context within which movements are successful or unsuccessful?
Pingback: What courts can/ will do | Politics Outdoors