JB

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.