"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Friday, July 10, 2015

The Supreme Court Is Most Powerful When It Follows Public Opinion

The Supreme Court reflects shifting social mores at least as much as it influences them. Rulings such as Brown v. Board of Education and Obergefell were inconceivable until enormous changes in the surrounding social and political context had first occurred. Before Brown, President Franklin D. Roosevelt appointed the 1st black general in American history, President Harry S Truman issued executive orders desegregating the federal military and the civil service, and Jackie Robinson desegregated major league baseball. Even in the South, black voter registration increased from 3 % in 1940 to 20 % in 1950, and blacks began serving on juries and in local political offices for the 1st time since Reconstruction. Justice Sherman Minton noted "a different world today" with regard to race, during the Brown deliberations, and Felix Frankfurter remarked upon "the great changes in the relations between white and [black] people."

Justices often delay or minimize interventions to avoid causing powerful political backlashes when they are out of step with social attitudes.

Obergefell was rendered possible only by enormous shifts in attitudes and practices. The number of states forbidding discrimination based on sexual orientation increased from zero in 1980 to over 20 by 2015. In 1992, not a single Fortune 500 corporation extended benefits to the partners of gay employees, but in 2015 the vast majority of them do so. In 1990, fewer than 1 American in 4 supported gay marriage; in 2015, 60 % of them do so. At the oral argument in the Defense of Marriage Act case in 2013, Justice Antonin Scalia noted a "sea change" in attitudes regarding gay marriage.

Judicial interventions can cause powerful political backlashes that retard the progress of social reform movements. The court's provisional ruling against the death penalty in 1972 generated tremendous support for capital punishment, as 35 states quickly enacted new death penalty statutes. Similarly, Roe's aggressive defense of abortion rights fostered a right-to-life movement that fundamentally reshaped American politics and arguably made abortion reform more contentious and resistant to compromise.

Sensitive to the possibility of backlashes, justices often delay or minimize their interventions. In Brown, the justices hedged their remedial order - school desegregation was to take place "with all deliberate speed" - because they feared that ordering immediate desegregation would produce school closures and violence.

Even though state supreme courts began wrestling with gay marriage in the early 1990s, the Supreme Court did not grant review in such a case until 2012 - then ducked the issue the following year. By the time of Obergefell, 11 states had enacted gay marriage by legislation or referendum.

By waiting until 2015 to issue a broad ruling in favor of marriage equality, the Obergefell majority probably will have managed to forestall significant backlash. Moreover, while Brown's opponents thought that sending their children to integrated schools would be cataclysmic and Roe's opponents regard abortion as murder, a marriage equality ruling will have little direct impact on opponents' lives.

Some state and local politicians - especially in the Deep South - may express outrage at the court's decision, but one cannot imagine a governor mimicking George Wallace and "standing in the courthouse door" in opposition to marriage equality.

Source: Op-Ed, New York Times, July 7, 2015. Michael Klarman is a professor at Harvard Law School.

Report an error, an omission: deathpenaltynews@gmail.com