“There is virtually no political question in the
United States that does not sooner or later resolve itself into a judicial
question. Hence the parties in their daily polemics find themselves obliged to
borrow the ideas and language of the courts.”—French diplomat, political
scientist, historian, and observer of America Alexis de Tocqueville
(1805-1859), Democracy in America, translated by Arthur Goldhammer (1835)
As true as Tocqueville’s words were at the time he
wrote them, they are even more valid today. Back in 1835, there were only 24 states in the Union whose claims needed to
be adjudicated, not 50; the U.S. was still a rural (not industrial, let alone
post-industrial) society with comparatively few complications; the New Deal had
not established the executive branch as having inescapable responsibility for
the economy, with complex legislation and regulatory agencies to boot; and the
U.S. Supreme Court had only exercised once, in Marbury v. Madison, its power of judicial review to declare
legislation unconstitutional.
None of those conditions obtain today. The latest
example of this reliance on courts is the abortion issue, but it is not the
only example. The battle over President Trump’s multiple scandals has led to
divisions between the Democratic-dominated House of Representatives and the
GOP-controlled Senate, producing an inevitable face-off in the courts. More
such legal struggles are sure to follow.
The effectiveness of all this grappling remains to
be seen. Liberals point to the Supreme Court’s role in initiating the end of
Jim Crow in the South with Brown v. the Board of Topeka, Kansas, but the
success of the civil-rights movement depended crucially on securing broad
public support that quickly manifested itself in countless bits of legislation.
But not all political struggles are capable of being
decided, or even influenced, by the courts. For decades after Judge Arthur
Garrity ordered busing to root out de facto segregation of Boston’s public
schools in the 1970s, the stark black-and-white divisions evident in classrooms
then only worsened.
And, as Andrew Sullivan noted in a recent New York Magazine article, while the Supreme Court’s decision on same-sex marriage
has led to a decided shift in public opinion and state laws throughout the
nation, the abortion debate remains frozen 46 years after Roe v. Wade. As the events of this past week showed, both sides have merely dug in their heels.
(I took the accompanying photo of the Supreme Court
back in November 2015, when I was on vacation in Washington, D.C.)
No comments:
Post a Comment