Alan Morrison and Robert A. Katzmann
ALEXIS de Tocqueville said 150 years ago, "nearly any policy issue of any importance at all ends up in the courts." Tocqueville's statement is probably truer today than it was then. Thirty years ago American corporations did not sue each other, and they sued the government only once in a while, and only as a last resort. Litigation was simply not considered a course of action for nice people. Things have changed drastically over the past few decades.
The second point that I want to make is that the corporations and the religious right groups involved in recent litigations are different from the NAACP, the ACLU, and Public Citizen. In many of these earlier cases, interest groups were representing a minority interest against a majoritarian principle. That is, they were trying to defeat in the courts that which the legislature has provided.
The opposite has occurred in recent years because there is more majoritarian influence in the political system. The interesting thing about the religious right is that none of their cases would have been necessary but for the fact that Leo Pfeffer and his colleagues at the American Jewish Congress were successful thirty and forty years ago, making local boards of education feel compelled to act. Currently, the issues that school boards face are the opposite of the issues decided under the Warren court.
It is inconceivable, for example, that fifty years ago anyone at the University of Virginia would have tried to stop Ron Rosenberger from publishing Wide Awake: A Christian Perspective at the University of Virginia, a