Courts and Politics

There's an idea going around, which I have some sympathy with, that it's bad politically for liberals when policies which liberals support are enacted by courts rather than by democratically elected bodies. The idea is that when this happens it really motivates opponents of those ideas, because the ideas are being forced on them. The opponents then go out and dominate public conversation on the topic, while liberals sit back, content with the idea that the courts will defend their policies preference independent of the other sides voice being far louder in public debate. This story is told about, for example, gay marriage, abortion rights, and teaching of intelligent design in schools. I believe this story, insofar as it makes a prediction about the effect of a courts decision on political mobilization.

But the story has a lot of holes in it. It assumes that the same group of people who failed to get their policy enacted democratically are the people going to court to get it enacted anyway. But you can't bring a case in court unless you've suffered a legally cognizable injury. So if liberals fail at preventing a democratically elected school board from mandating the teaching of Intelligent Design, it's not being brought to court by "liberals" in general. It's being brought to court by the parent of a child who is being harmed by that policy because the child has had their freedom of religiong encroached upon. So the alternative to the political harm of court action is to tell the people who are actually being hurt by unconstitutional policy that they have no recourse. If it were the case that no one in the community where Intelligent design was being taught opposed the policy, no one could take it to court. This makes it clear that this is a straightforward example of protecting the rights of a (religious) minority from the tyranny of the majority, which is (in my understanding) part of the reason for the establishment clause in the first place.

UPDATE: In case my conclusion wasn't clear, I'm saying that even though it has negative political effects to work through the courts, it's not really sensible advice to tell other liberals to stop working through the courts for political reasons. The people doing it aren't, in general political actors, but people who feel that they or their child have been legally wronged and want to stop that from continuing.

This post might be clearer if seen in the context of the people it's responding to. While the discussion about policies being enacted via courts versus legislatures is in no way new, this particular round of the conversation started off with
Nathan Newman and then Kevin Drum responded. Then the original poster replied to that, and then Drum reiterated his original point, after which Yglesias provided a counterpoint to that. If you read all five of those linked posts, you will know more about this debate than I would imagine you want to. Also, I haven't read about half of them.