Quote of the Day (Alexis de Tocqueville, on Political Questions Decided in U.S. Courts)

“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.)