Eugene Volokh picks up on a commentary by Burt Neuborn in The Nation about the left’s (or progressive’s) addiction to the court system where he warns that simply relying on the courts to render verdicts rather than persuading people is a mistake. I have to agree – the long term battle ground is hearts and minds, not 5 particular justices. And he picks three good examples – abortion, gay rights, and separation of church and state.
One of the things that irks me when discussing abortion rights is people who begin and end with “it’s a constitutional right” period. Yeah, because 5 people said so, not on anything actually in the constitution mind you, but based on emanations from the penumbra of the Bill of Rights. I don’t know what that literally means in a legal sense, nobody does, but in practice it means a majority of the Supreme Court can hand down any ruling they want and it’s the law of the land. Not only is it non-persuasive, it’s infuriating. There are other arguments for abortion, which I don’t think beat the arguments against, but some of them are at least somwhat persuasive and not at all infuriating.
Quite frankly there is a danger if many important descision is usurped from the people and their elected representatives and made by the judiciary — it destroys representative government with its art of compromise and softening the rough edges and makes politics a winner-take-all match between two sides that are dedicated to packing the judiciary with their own.
I’ll go an example further – the famous Brown vs. Board of Education case that “ended” segregation in schooling. Only it didn’t end segregation – public schools are still separate and unequal, only more unequal which is more important. Predominately black schools in the city of St. Louis are as a practical matter far worse now that they were in 1954.
And that’s an important fact – there are limits to what laws can do, much more so that the limits on what majority culture can do.
