As the court rulings in favor of equality continue to pile up in the wake of the Supreme Court’s ruling in Windsor — so far, every federal court since then has struck down state laws banning same-sex marriage when challenged — Scott Lemieux argues that such rulings can help drive public opinion.
In 1991, Gerald Rosenberg published The Hollow Hope, perhaps the most important and influential book about the Supreme Court written by a political scientist in the last quarter-century. Rosenberg argued that the ability of the courts to generate social change was generally overrated. While I don’t agree with all of his arguments, the book was an important and useful corrective for progressives who put too much faith in the judiciary to advance their agenda following the heyday of the Warren court.
In a revised edition that came out in 2008, Rosenberg argued that the campaign to achieve same-sex marriage rights through litigation was a massive blunder. “[A]ctivists for same-sex marriage turned to the courts too soon,” Rosenberg argued. They would have been better off with a legislative strategy “that would be less likely to produce backlash.” Many pundits, including those who supported same-sex marriage rights, echoed these claims.
The idea that social change achieved through the courts produces more backlash than comparable social change achieved through legislatures is a common one, most often heard about Roe v. Wade. Specifically, the idea is that court-driven change ensnares the issue in accusations of judicial activism, rather than letting it evolve quietly and organically, a trope that even Justice Ruth Bader Ginsburg has bolstered. (My scholarly work suggests that these claims are not actually very persuasive in the abortion context either.)…
The lesson is that political conflict cannot be avoided merely by avoiding particular means of affecting social change. When proponents of social reform win, they will likely generate a backlash by supporters of the status quo — no matter what institution creates the policy change. The only way to avoid backlash is simply to not win.
At this point, the success of the gay marriage litigation campaign should be clear. Public opinion has trended in a remarkably positive direction, ultimately reaching the politically cautious occupant of the White House. Same-sex marriage rights have continued to advance at the state level, and such marriages now have federal recognition thanks to the Supreme Court’s Windsor decision last year. Arguments that the judicial decisions favoring same-sex marriage would be a major liability for the Democratic Party have proven to be unfounded.
The courts are generally reluctant to get too far out in front of public opinion. I forget who it was who said that the Supreme Court likes to be the last man in on a gang tackle — once the runner has already been subdued by others, the court runs in and jumps on top of the pile while yelling “let’s do some justice here!” But I think it’s also true that court rulings can help drive public opinion by redefining the “norm.” I think that clearly happened with Brown v Board of Education and many other rulings.
Yes, there will always be a backlash, but that doesn’t mean the backlash is going to be effective or that it will derail efforts to secure greater justice or equality.
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