It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way.
– Charles Dickens
In addition to opening A Tale of Two Cities (affiliate link), this extended quotation kicked off Professor Pam Karlan’s comments when asked to provide some measure of sense to the Supreme Court’s rights jurisprudence this Term. And by that I mean she read the entire quote to an audience of people whose body language screamed out, “yeah, we got it” after the word “foolishness.”
The passage (at least the gist of the passage), however, is apropos. This Term saw a voter registration law struck down in Arizona, even though Section 5 of the Voting Rights Act is likely to follow it out the door. As Elie is quick to point out, the black community is likely to get hammered by the Court, yet Professor Karlan thinks that the gay community is going to win, either this year or next.
Karlan, and her fellow panelists at Netroots Nation, outlined a theory that ties these competing decisions together — at least until Monday, when the Court might shoot the whole logic down…
The key to deciphering the logic of the Court is to divide cases involving gay rights, protections for workers and consumers, and racial justice into separate spheres, ignoring the philosophical connections between them. Once divided up, making sense of the decisions involves identifying the interest group with the most vocal and cohesive grassroots movement.
Karlan began her remarks by citing the Amex decision, decided mere hours before she took the dais, explaining that poor and middle-class Americans had just received an invitation to go a few rounds with every major corporation playing the role of Mike Tyson in his prime. In her analysis, the Court has launched open warfare on workers and consumers, as evidenced by the Amex decision — declaring that large corporations can shield themselves from their own illegal acts — and the upcoming decision in Vance v. Ball State, which will determine what constitutes retaliation by a supervisor.
Meanwhile, even though this is, in many ways, the most conservative Court ever, it’s more left-leaning on gay rights than the Warren Court. Which is actually pretty easy since the Warren Court was populated with Mad Men caricatures who almost certainly called gay people “degenerates” like Pete Campbell does.
But generations can soften. Indeed, Professor Karlan shared a personal anecdote from her full-circle journey from clerking when the Court handed down Bowers and attending the decision in Lawrence. In 2003, she heard Walter Dellinger ask Linda Greenhouse the most interesting part of the decision, and Greenhouse responded that it was the presence of former, now-out clerks. Specifically noting Justice O’Connor giving a sly raise of the eyebrow.
So the Supreme Court is less of a cloistered group of nine unelected officials deciding the rights of the masses, as a political being responding, in fits and starts, to popular will.
Thus, the difference between everyone getting beaten down by corporations by the same institution inching toward the recognition of gay rights “is in the streets,” according to Karlan. The resistance to business excess, to the extent it was a successful movement at all, got crushed when it fled Zuccotti Park in the middle of the night, but the movement to recognize LGBT rights kept forging ahead, growing effective enough to convince the president to publicly support same-sex marriage in an election year.
The only non-lawyer on the panel, Rick Jacobs of the Courage Campaign, noted that if people continue to score victories without struggle, they don’t notice and the movement breaks apart. This marks the difference between the gay rights cases and the cases looking to strip African-Americans of legal protections we’ve taken for granted. The civil rights movement of the 60s is no longer an omnipresent, cohesive force bending popular opinion.
More years ago than I’d like to recognize, Gerald Rosenberg wrote The Hollow Hope (affiliate link), arguing that the judicial system fails to create meaningful social change and only serves to cripple legislative progress. Unsurprisingly, a panel of Supreme Court litigators (Karlan and Thomas Saenz, general counsel of the Mexican-American Legal Defense and Educational Fund) and one of the driving forces behind the Prop 8 case (Jacobs) did not agree. But the crux of this panel was not so much a rejection of the central thesis of The Hollow Hope as much an argument that it is incomplete.
Because if landmark victories in the courts can render movements complacent, epic setbacks can reinvigorate a movement by giving it a central rallying point. As Jacobs said of the gay rights movement specifically, “We’ve learned how to take a court case or a series of court cases and turn them into organizing opportunities.”
To borrow from Seinfeld, you can rely on the courts to bring about social change, but it’s like knocking over a vending machine — you can’t do it in one push.