Edward J. Lazarus: Barack Obama, Hillary Clinton, and the Debate Over How Much Supreme Court Decisions Truly Matter
[Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.]
Over the last 15 years, a considerable academic literature has developed that downplays the importance of landmark Supreme Court decisions such as Brown v. Board of Education or Roe v. Wade in reshaping American society.
Beginning with Gerald Rosenberg's path-breaking The Hollow Hope, books putting forward this thesis have observed, for example, that even to this day, Brown has not succeeded in achieving desegregation of our public schools: While government-instigated segregation is now beyond the pale, due to "white flight" segregated housing patterns, and other factors beyond the control of the courts, a stunning percentage of our public schools, especially in the inner cities, lack meaningful racial diversity.
Nor, in the view of these scholars, did the Supreme Court, through Brown or other decisions, make all that much progress in the broader field of civil rights, until Congress radically changed the legal landscape with the great civil rights acts of the mid-1960s.
Roe v. Wade suffers a similarly dismissive interpretation. It is seen as creating a political backlash that, in the view of some scholars, may well have set back the cause of abortion rights and even, perhaps, the cause of women's rights. Without Roe,the commentators claim, women would have made the same or even greater social gains through the political processes.
It is not my intent here to survey the strengths and weaknesses of this school of thought. But it is difficult to look at the fight for the Democratic nomination and not conclude that those who would pooh-pooh the importance of Supreme Court decisions in American life somehow miss the inspirational qualities of these decisions, and how these inspirational qualities ultimately pay off in ways that are difficult to measure.
Until John Edwards dropped out of the race yesterday, all three major Democratic candidates were lawyers, and the career of each either reflected or was closely intertwined with the rights revolution ushered in by the Warren Court of the 1960s. Now, with only Senators Obama and Clinton remaining in the race, I'll take a closer look at how each of the two may have been affected by seminal Supreme Court decisions....
To be sure, the emergence of Obama, Clinton, and, until recently, Edwards as the leading Democratic contenders is not directly attributable to the Warren Court and the constitutional revolution it spearheaded. So many other factors also were powerful forces in the rise of each. But is it really possible to imagine that an African-American, a woman, and a progressive trial lawyer from the South could ever have become contenders at all - much less the leading contenders - without the achievements of that Court?
I doubt it.
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Over the last 15 years, a considerable academic literature has developed that downplays the importance of landmark Supreme Court decisions such as Brown v. Board of Education or Roe v. Wade in reshaping American society.
Beginning with Gerald Rosenberg's path-breaking The Hollow Hope, books putting forward this thesis have observed, for example, that even to this day, Brown has not succeeded in achieving desegregation of our public schools: While government-instigated segregation is now beyond the pale, due to "white flight" segregated housing patterns, and other factors beyond the control of the courts, a stunning percentage of our public schools, especially in the inner cities, lack meaningful racial diversity.
Nor, in the view of these scholars, did the Supreme Court, through Brown or other decisions, make all that much progress in the broader field of civil rights, until Congress radically changed the legal landscape with the great civil rights acts of the mid-1960s.
Roe v. Wade suffers a similarly dismissive interpretation. It is seen as creating a political backlash that, in the view of some scholars, may well have set back the cause of abortion rights and even, perhaps, the cause of women's rights. Without Roe,the commentators claim, women would have made the same or even greater social gains through the political processes.
It is not my intent here to survey the strengths and weaknesses of this school of thought. But it is difficult to look at the fight for the Democratic nomination and not conclude that those who would pooh-pooh the importance of Supreme Court decisions in American life somehow miss the inspirational qualities of these decisions, and how these inspirational qualities ultimately pay off in ways that are difficult to measure.
Until John Edwards dropped out of the race yesterday, all three major Democratic candidates were lawyers, and the career of each either reflected or was closely intertwined with the rights revolution ushered in by the Warren Court of the 1960s. Now, with only Senators Obama and Clinton remaining in the race, I'll take a closer look at how each of the two may have been affected by seminal Supreme Court decisions....
To be sure, the emergence of Obama, Clinton, and, until recently, Edwards as the leading Democratic contenders is not directly attributable to the Warren Court and the constitutional revolution it spearheaded. So many other factors also were powerful forces in the rise of each. But is it really possible to imagine that an African-American, a woman, and a progressive trial lawyer from the South could ever have become contenders at all - much less the leading contenders - without the achievements of that Court?
I doubt it.