Godzilla v. board of education

Dear Violet,

I am most definitely enjoying all the law-talking. So, I was wondering about something. You said this about political news/discourse/libel (I think?):

…this is one of the few places where I think impact litigation can really bring about pretty strong social transformation. P.S. I also think SCOTUS is going to overturn the healthcare bill. What do those last 2 sentences have to do with each other?

When you say this, I can’t help but wonder whether you’re barking up a Gerry Rosenberg-shaped tree? This is one bit of law-talking I’ve encountered in my… um, studies (the other bit being kind of a lot of labor-relations law, so the NLRB jibber-jabber isn’t too far over my head), the argument in its simplest form being that the courts don’t bring about progressive social change. The evidence as I understand it is more or less as follows: Brown didn’t help civil rights (insofar as actual advancement required political mobilization & legislative action), Roe didn’t help abortion rights (insofar as it gave much more political momentum to opponents than supporters) and this Prop 8 litigation is similarly either too early or counter-productive.

The thing is, the same idea holds that the Supreme Court really can advance conservative social goals, which might be what you mean about the health care bill, no? This is the case because doing so usually means striking down progressive legislation, which I kind of interpret in the sense that legislation is hard to pass through congress and conservative goal and the striking-down are one and the same. A progressive goal on the other hand would be something like actually getting schools desegregated or actually getting people health care. But it’s all very unsatisfying because the court tried to do the former and failed and would’ve failed to do the latter as well, given the opportunity (whether they would have tried or not). So that still leaves me at Who Knows?

Also, there’s the idea that the court can interpret legislation within mainstream opinion or can knock down legislation outside mainstream opinion but can’t pull legislation outside the bounds of mainstream opinion. And no matter what Fox Liberty Ultra would have us believe, the health care law is perfectly mainstream and gettting more mainstream by the day.

Of course, I would have said this model was pretty convincing and means that it’s absurd to think the Affordable Care Act would be struck down, but I’m not sure I know how to plug Citizens United into the model. Is that law about process instead of social change? How does that change the court’s political economy? Indeed, that’s what worries me: the political economy of the court i so… kind of unpredictable? I think it’s easier to game out what kind of effects certain decisions would have, a la Rosenberg (although I suspect he’s not exactly correct about gay marriage litigation but whatever) than to tell what the decisions themselves will be. Me being me, the trouble as I see it is that the Supreme Court has four justices who appear willing to do almost anything that a critical mass of the zealous right deems a priority. Lifetime appointments are kind of supposed to solve this problem, but they also kinda exacerbate it sometimes (the idea that this occurred as well during the Warren Court etc, I think informs Rosenberg’s thesis, come to think of it).

And yes, yes you did explain the price of scorn. Do our readers need to know about delicious scorn? I’m not sure.


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