If Ever There Was A Time To Respond With More Than A Comment, This Is It

Ethan's post begs for a rebuttal, and so here it is.

First, one clarifying statement.  I have never said, nor do I expect I ever will say, that advocates and activists and victims should never resort to courts.  It is plain to see that courts are useful in all kinds of contexts to right wrongs.  Unlike Tushnet, I do believe that courts play a useful and necessary role in interpreting the Constitution and statutes.  My objection is to the fetishization of courts, both by commentators and advocates/activists.  To the extent Ethan's post may be read to suggest otherwise on my behalf, his is a strawperson argument.  To be clear, I think his post is much more than that (which is why it merits a serious response); but I want to clarify my own position lest I be misunderstood.

Moving on to the substance, rather than the subtext, of Ethan's arguments, let me initially take up the last paragraph of Ethan's critique, because the arguments there are the ones most often raised.    Put simply, Ethan argues that legislatures are not truly responsive to majorities.  I don't disagree.  But I fail to see how the courts are the answer to these particular problems associated with legislatures.  That is, if legislatures are non-majoritarian (and they certainly are non-majoritarian), how does the solution to the problem lie with courts?  (Let me be clear: as I will shortly argue, there are times when the solution lies with courts; but it can't possibly be every time.) 

Indeed, there is good reason to believe that courts are particularly bad at achieving "justice," whatever we may think that is.  I don't need to rehash every bad decision here to make that point.  A trip through history suggests that courts are ill-suited, from an institutional and political standpoint, to mediate our political disagreements.  And, as a strategic matter, even when courts achieve what we may believe is the "just" result, we may lose in the long run.  I've made this argument in connection with same-sex marriage; others have made it in connection with abortion.  And even the court's crowning glory, Brown v. Board, has meant far less to the equal rights struggle than the Civil Rights Act of 1964, which had the full force of grassroots political mobilization behind it.  Thus, even when courts get it right, which there is no reason to trust that they do on any more regular basis than legislatures, it isn't worth putting all of our eggs in its basket--as liberals seem to have done for a very long time on social issues.

The truth is, the solution lies in Ethan's own suggestions: a truly majoritarian branch of government and/or finance reform.  But we are too busy fighting our political battles in court to do the hard work.

Moving on to Ethan's initial (and what I take to be his main) point, that the cost of mobilization is high--too high for the individual to bear--I agree.  That's why I do not believe that courts have no role.  Advocacy through courts makes the most sense when the individual is a member of an insular minority and/or the harm is unique to him/her and unlikely to be shared by or cared about by others. 

But many of our political battles are not over such issues.  For instance, Kelo did not affect just a subgroup of people; it affected potentially everyone, and apparently a lot of people took it personally.  Similarly, abortion laws potentially affect all women and doctors (and some would say men too).  So, putting aside the constitutional issues in Kelo and Roe, there is no reason to think that mobilization would be particularly difficult in response to court decisions, assuming there are not institutional restrictions on mobilization and political activity.  (Akhil Amar believes that the law at issue in Roe should have been struck down because it was passed before women could vote, and thus they were institutionally unrepresented in the legislature.  I agree.) 

The same goes for the french fry case.  Children, although they are not entitled to vote, are not a uniquely powerless group in this country; indeed, I suggest that there are more interest groups and laws that seek to protect children and secure rights on their behalf than there are forces that seek to harm children.  And the response to the french fry case proves it. 

None of this means we can't critique the court decisions; indeed, we should and must.  But it does mean that we ought not fetishize them and view the legal system myopically.  As a matter of both principle and strategy, we should seek to convince people and legislators; not just judges.

Finally, my strongest response to Ethan is this:  It isn't that the Court has no role.  Even in Kelo and Roe and all of those other cases, it has a role.  But what I am most interested in talking about is the conversation between the branches of government.  That is, when the Court decides Kelo one way, how do legislatures react?  And what does that tell us about the nature of legislatures, courts, and government?  When the Court rules in Roe, how do political groups organize around it, and what are the implications for the future?  It isn't so much that I'm a committed majoritarian (though I may be); it is that we are talking about two different things.  And I kind of think that the thing I am talking about is somewhat more important in the long run than the question of whether Kelo was right.