Why Me Worry

Mark Graber

Conservatives eager to take even fuller possession of the federal judiciary may wish to temper their enthusiasm a bit. Some preliminary findings suggest that conservative judicial activism may face similar difficulties as liberal judicial activism. In the most important political science work published this generation, Gerald Rosenberg asserted that such decisions as Brown v. Board of Education, Roe v. Wade, and Miranda v. Arizona did far less to secure desegregated education, access to legal abortion, and civilized police interrogation than was commonly supposed. Although Rosenberg’s thesis has been subject to substantial scrutiny (I have my doubts on several matters), the general principle seems sound. Judicial decisions often prove hollow victories when they must be implemented by hostile elected officials.

Progressives seem as able to frustrate conservative judicial activists. A forthcoming book by Jon Gould presents a strong argument that hostile judicial decisions have not prevented universities from banning hate speech and adopting other speech codes hated by conservative activists. Having been part of a graduate admissions process for a number of years, I can attest that progressives will have no difficulty getting around whatever limits Grutter and Gratz place on affirmative action. Now Martin Sweet, a political scientist who teaches in Florida, is circulating an interesting manuscript detailing how legislatures are merely refining their minority set-aside programs in response to judicial decisions declaring such measures unconstitutional. In short, many of the same forces that inhibited the implementation of Brown and other progressive decisions are inhibiting the implementation of Croson, RAV and other conservative decisions. As is the case with the Rosenberg thesis, criticisms will no doubt arise (and Sweet is aware that conservative judicial activism has had an adverse influence on the programs he studies). Still, one should not presume that Rehnquist Court decisions declaring affirmative action at a constitutional end will place affirmative action at a political end.

These findings, of course, are a poor balm for progressives. They do indicate that a federal judiciary even more conservative than at present will have more difficulty ensuring compliance in recalcitrant liberal jurisdictions. The real problem is that fewer and fewer strong liberal jurisdictions exist. Where there is strong support for affirmative action and related policy, elected officials will usually find some way of maintaining the policy. Where there is not, judicial decisions are likely to give whites in power excuses to end programs they never felt much enthusiasm about in the first place.

Posted 1:41 PM by Mark Graber [link]