The Question Is, Why Is this News?

Mark Graber writes at Balkinization,

When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.

I've been telling students something like this for 15 years. My version is a little different, as it makes a little more space for a libertarian/conservative split when it comes to some issues touching on the Bill of Rights, with the libertarians sometimes sounding quite “liberal” at times. But quibbles aside, it never ceases to amaze me that the fundamental idea that our courts are most frequently, generally, perhaps even naturally, conservative-bordering-on-reactionary is even controversial, much less that it is far from the dominant consensus. (That said, I do accept there is a case to be made that the current court is more conservative than the post-Korean-War norm, but that's just a question of how far back you sample.)

I understand that law school faculties underwent a great expansion which resulted in their being stuffed with and dominated by a generation that saw the Warren court as the ur-Court. But even if that is your ideal, and it wasn't perfect, why does this belief so often carry with it the myopic view that the Warren court was not a relatively rare historical aberration? Even most of the seemingly progressive moves of the Marshall Court were actually centralizing (Federalist), then seen as generally supporting the interests of the propertied and creditor class. And in between…

Such at least is my positive claim. The normative implications are less clear, for there are reasons why it may not be all bad to have a conservative bias in the courts, at least if one has a small-d democratic bias in the legislature. (I'd say we don't have that now, by the way, due to various sorts of gerrymandering of congressional districts and the small-d democratic imbalances in the Senate.)

But one positive implication is clear: progressives put their reliance on courts at their peril. Social change happens most commonly in civil society (not least in churches) and at the ballot box. The courts are most commonly followers, not leaders. Mr. Dooley was a genius.

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