Beyond the Alito Battle: Creating Democratic Change
AS CONSERVATIVES PREPARE to seize control of the Supreme Court with the nomination of Samuel Alito, liberals realize that the reproductive freedoms guaranteed by Roe v. Wade are endangered. But what can the left do?
Some progressives say that the primary battleground will continue to be the courts where, eventually, if the left strategizes well, the loss of fundamental freedoms can be minimized. These optimists speculate that, with the possible election of a Democratic president in a few years, perhaps liberals can turn the tide.
But if one carefully considers today's social and political landscape, one realizes that the judiciary is but a small part of the problem. In fact, the crisis of failed progressivism in the United States has little to do with the Supreme Court.
As both an attorney and a Humanist, I can appreciate the importance of civil rights jurisprudence. Despite conservative criticism of "legislating from the bench," many of the landmark civil rights cases in American legal history have led society in the direction of social progress. If not for "judicial legislating" in the Brown v. Board of Education case of 1954, for example, racial segregation in public schools would still be legal. It's interesting that not many conservatives point to Brown when they criticize judicial activism.
Nevertheless, Humanists and progressives should recognize that judicial activism must be seen as a necessary evil. That is, we generally need judicial activism only when the democratic process fails to adequately protect fundamental rights. Brown was thus necessary because the democratic process had failed to provide basic equal protection for minorities. Therefore the courts intervened to declare that, in light of the failures of the legislative and executive branches to desegregate public schools, judicial power would do so. Whenever the judicial branch acts to protect a minority group, one can presume that the intervention was necessary because the democratic process had neglected that group's rights.
Thus we shouldn't be surprised when judicial activism generates public backlash. Even a case such as Brown, which today is seen as indisputably wise and just, was controversial when it was first decided. Indeed, if we look at other cases, such as Roe v. Wade, the subsequent public backlash sometimes never dissipates.
Roe therefore becomes an example of why Humanists and progressives should be cautious when utilizing the courts to trump the democratic process. Though virtually all Humanists and progressives would agree that a woman should have a fundamental right to make her own reproductive choices, one must concede that Roe, by declaring that right judicially (and therefore bypassing the democratic process), led to several undesirable and unforeseen consequences.
First and foremost, the Roe decision mobilized the religious right. Not only did the decision probably cause the ultimate defeat of the Equal Rights Amendment, it also directly led to the creation of the Moral Majority, politicizing social conservatives who had heretofore generally avoided the political arena. Subsequently, the Christian Coalition and other religiously fueled political groups mushroomed across America, creating …