February 07, 2005,
Who do you think said this: "Reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives.... Whatever you feel about the rights that have been gained through the courts, it is easy to see that dependence on judges has damaged the progressive movement and its causes"? Rush Limbaugh? Laura Ingraham? George Bush? The author is David von Drehle, a Washington Post columnist. This admission, by a self-identified liberal, is refreshing stuff. It is a healthy sign for the country and those rethinking the direction of the Democratic party in the wake of November's election results. Let's hope this sort of thinking spreads.
There's no doubt that constitutional lawsuits have secured critical civil-right victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.
This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there's little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs real-world laboratories in which ideas can be assessed on the results they produce are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.
At the same time, the politicization of the judiciary undermines the only real asset it has its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary's diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate's confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.
As von Drehle recognizes, too much reliance on constitutional litigation is also bad for the Left itself. The Left's alliance with trial lawyers and its dependence on constitutional litigation to achieve its social goals risks political atrophy. Liberals may win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts. But in failing to reach out and persuade the public generally, they invite exactly the sort of backlash we saw in November when gay marriage was rejected in all eleven states where it was on the ballot. Litigation addiction also invites permanent-minority status for the Democratic party Democrats have already failed to win a majority of the popular vote in nine out of the last ten presidential elections and pandering to judges rather than voters won't help change that. Finally, in the greatest of ironies, as Republicans win presidential and Senate elections and thus gain increasing control over the judicial appointment and confirmation process, the level of sympathy liberals pushing constitutional litigation can expect in the courts may wither over time, leaving the Left truly out in the cold.
During the New Deal, liberals recognized that the ballot box and elected branches are generally the appropriate engines of social reform, and liberals used both to spectacular effect instituting profound social changes that remain deeply ingrained in society today. In the face of great skepticism about the constitutionality of New Deal measures in some corners, a generation of Democratic-appointed judges, from Louis Brandeis to Byron White, argued for judicial restraint and deference to the right of Congress to experiment with economic and social policy. Those voices have been all but forgotten in recent years among liberal activists. It would be a very good thing for all involved the country, an independent judiciary, and the Left itself if liberals take a page from David von Drehle and their own judges of the New Deal era, kick their addiction to constitutional litigation, and return to their New Deal roots of trying to win elections rather than lawsuits.
Neil Gorsuch is a lawyer in Washington, D.C.