A justice to keep America from straying
By David R. Dow
Christian Science Monitor
When President Bush nominates someone to replace Justice Sandra Day O'Connor, he should remember one thing: Judges are America's prophets.
The president and his allies have said many times that judges aren't supposed to impose their personal values on the rest of us. That is true. What judges are supposed to do, however, is to force us to live in accordance with our own values.
It is easy to confuse these two things. When judges force us to adhere to our own values, they sometimes require that we behave differently from the way we have been behaving. Because they have forced us to alter our actions, it's natural to think they must be imposing their own values on the rest of us. But that's not what is happening.
Consider how, in these landmark cases, the court told us we had to change our behavior:
• Brown v. Board of Education (1954): We can't require blacks and whites to go to separate schools.
• Baker v. Carr (1962): We must count the votes of all citizens equally.
• Gideon v. Wainwright (1963): We can't imprison people without providing them with a lawyer.
• Griswold v. Connecticut (1965): We can't prevent married couples from using contraceptives.
• Loving v. Virginia (1967): We can't prevent whites and blacks from marrying one another.
• Batson v. Kentucky (1985): We can't strike people from juries just because they are black.
• United States v. VMI (1996): We can't prevent women from attending state-run military schools.
• Lawrence v. Texas (2003): We can't interfere with private sexual activity between consenting adults, even if they are the same gender.
In all these cases, the court forced us to act differently from the way we had been acting. When the court did all these things, therefore, it was interfering with the political process. It was thwarting the will of the majority. Legislatures, representing us, had enacted all these laws that the court struck down. But it is a mistake to think that the court was imposing its own values. Rather, in all these cases, the court was safeguarding our own. It was telling us that we had betrayed the Constitution, our higher law.
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5 comments:
"In all these cases, the court forced us to act differently from the way we had been acting. "
While I agree with Dow's basic argument, I think he's wrong on this particular point. Judicial decisions don't force people to change their behavior. They simply establish legally enforceable norms against which behavior is assessed. At best, the legal system can then impose consequences for failure to comply (e.g. reverse a conviction if a defendant is denied the right to counsel). Indeed, as University of Chicago law professor Gerry Rosenberg argues in his book The Hollow Hope, some cases -- notoriously Brown v. Board of Ed. -- have been strikingly ineffective at bringing about the desired behavioral changes. More than half a century after Brown, public schools are at least as segregated as they were before, and in some cities even more so.
Continental Op,
Excellent point and it is more of a symbolic gesture with some enforcement effort... no doubt our schools are segregated and race is not the only dividing line.
I appreciate you sharing your expertise in these matters as I want to learn more about the law.
Continental Op,
Is there an alternative practice that you view as more effective in influencing social behavior?
I put Rosenberg's book on my list of books to check out...
Well, I don't agree entirely with ROsenberg, who I think does give short shrift to the potential for acheiving social change through the courts. The important lesson I draw from him is that it is a mistake to rely on the courts alone. A judicial opinion like Brown or the others Dow mentions does play an important role in legitimizing (or delegitimizing) certain positions -- e.g. advocates of school desegregation can assert that it is "the law of the land". But litigation (and legislation) are merely tools; the real engines of change are social movements, operating "on the ground". As my favorite twist on the old slogan has it: "Educate, litigate, organize!"
I agree:
Rules for Radicals
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