Are the Courts Progressive?
by Josh K-sky on Aug.09, 2010, under Politics
There’s a temptation for liberals, especially when confronted with demagogic initiatives like California’s Prop 187 and Prop 8 and Arizona’s SB1070 to look to the courts and the function of judicial review as the locus of minority protection in U.S. democracy. In its ugliest form, this takes the form of an anti-populist snobbery: “thank god we have the courts to protect us from yahoos.”
An old Scott Lemieux post provides a good summary of why, although this may be the case from time to time, progressive outcomes are rarely due to judicial review. Long excerpt below the fold.
Democracy is not at stake in discussions about judicial review. The answer to the question of whether judicial review is necessary for liberal democratic government is a clear, unequivocal “no.” Are the U.K., pre-1982 Canada or Australia less democratic than the United States? I sure don’t see it; if anything, in the same time period their human rights records are better. It’s worth remembering that the American South remained largely composed of apartheid police states for nearly a century after the Civil War, despite judicial review and a Constitution that guaranteed due process, equal protection, and voting rights. Ultimately, if a society is not committed to democracy, judicial review won’t stop the tide; if they are, judicial review is not necessary.
Earl Warren is dead. It’s worth remembering that the 5-liberal-votes majority of the Warren Court lasted from 1963-8, and also happened to coincide with arguably the most progressive legislative period in our history. Liberals have a tendency to regard this highly anomalous court as if it was typical. But, in fact, the Supreme Court has generally not been a progressive institution, and it won’t be again in the near future either. And on a related point:
The Court is not a reliable defender of powerless minorities. I don’t mean to pick on Armando again, but his claim that ‘[t]he Supreme Court of the United States has been the bulwark of the defense of citizens against the abuse of government” is quite problematic. Yes, there are some major exceptions: church and state, Brown, Roe, some of its criminal justice decisions (and, again, most of these came during a few years.) But you also–to pick a few obvious examples from many–have Dred Scott (African-American citizens cannot be citizens of the United States), The Civil Rights Cases (greasing the skids for Jim Crow by striking down the Civil Rights Act of 1875), Hammer v. Dagenhart (striking down a federal law banning the interstate shipment of goods made with child labor), Debs v. US (upholds the conviction of a labor leader given a long jail term for making a speech during WWI), Korematsu v. US (or, as Michelle Malkin calls it , “porn”), McCleskey v. Kemp (the death penalty is constitutional in application despite clear evidence of racial bias in sentencing), and on and on and on. The Court did nothing about the Alien and Sedition Acts, upheld the Fugitive Slave Act and segregation while striking down Reconstruction civil rights acts, did nothing about free speech violations during WWI, struck down lots of progressive economic regulation, did nothing about female disenfranchisement, and did little about the abuses of McCarthyism until McCarthy had been discredited. And then we have the comparative problem: if you have any evidence that the United States has a better human rights record than similar countries that don’t have judicial review, I’d like to see it.
I’ll be tearful with gratitude if the Roberts Court enshrines a right to marry free of gender discrimination. But the broader outlines of the courts and majoritarianism are worth keeping in mind.