Friday, February 07, 2003


How Eldred v. Ashcroft is like Bowers v. Hardwick, Part I

I’m currently working on a scholarly article on how social movements succeed or fail in shaping American constitutional law. As I thought about the recent Eldred case, which refused to hold the Copyright Term Extension Act unconstitutional, I was struck by the similarities to Bowers v. Hardwick, the 1986 case in which the Supreme Court refused to hold that same sex sexual relations were constitutionally protected. I don’t mean to say that both decisions were equally unjust (or equally just). Given my politics, and my views about constitutional law, I happen to think that Bowers is a more troubling opinion than Eldred, but I understand that people may disagree, and some probably think that both cases are perfectly rightly decided.

Rather, what struck me about both cases is that both involved unsuccessful first attempts by a social movement to get the Supreme Court to accept some of the movement’s constitutional claims. Bowers is the first case in which the Supreme Court seriously considered and discussed at length the arguments of gay rights advocates; Eldred is the first case in which the Supreme Court has grappled with the emerging social movement for weaker intellectual property rights and “free culture.” In both cases, the Supreme Court decision reflected the beliefs (or prejudices) of a very large number of Americans who had not been exposed to the arguments of the social movement, and in both cases people feared that the social movement’s goals had been set back for many years by the loss. But, in both cases, I would suggest, such fears are unfounded.

Indeed, what Bowers produced was a resurgence of social movement activism by the gay rights movement. Unable to make their case in the federal courts, gay rights supporters shifted their strategies to influencing state, local and federal legislators and executive officials. Meanwhile, social attitudes changed, as there is a strong but not perfect correlation between the year that a person was born and their acceptance of homosexuality. Although not all young people support gay rights, more do than in previous generations. One suspects that in time, a very large number of Americans will accept that homosexuals deserve basic equal rights, or, at the very least, that same sex relations should not be criminalized.

By the time that the Supreme Court took its next major gay rights case in 1996, Romer v. Evans, the political landscape had changed greatly. A 5-4 majority struck down a Colorado state amendment that had been designed to preempt city and local ordinances protecting gay rights. What is important about Romer is that if you look at the new justices added since 1986 (Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer), four of them were in the majority in Romer, and two in dissent. That was enough to tip a 4-5 decision to a 5-4 decision. One should not assume that there are five clear votes for gay rights on the present Court; Boy Scouts v. Dale, which upheld the right of the Boy Scouts to fire an openly gay scoutmaster, went the other way. But it seems clear that the political and legal climate is changing in favor of gay rights. The Supreme Court has recently taken cert in Texas v. Lawrence, which asks whether Bowers v. Hardwick should be limited or overruled. It is quite likely that the Supremes took this case in order to overrule Bowers or at least severely cut back on it. Moreover, as I hope to discuss in my next post, it is altogether possible that future justices– even those appointed by Republicans– will be more sympathetic to gay rights claims than Burger (a Republican conservative) and White (a Democratic moderate) were in 1986.

In fact, the best evidence that times are changing is the vehemence with which the religious right has fought what it calls the “homosexual agenda.” When most Americans agree that homosexuality is illicit, it is not necessary to make such a fuss; rather majoritarian social mores are sufficient to lead judges and legislators to reject the claims of social movement advocates. But as the social movement gains steam, and convinces a larger and larger share of the public that it is making sense, opponents tend to become increasingly anxious, and you see energetic reaction and attempts at backlash. For me, the sign that the gay rights movement had drawn blood was the Defense of Marriage Act signed by President Clinton. The very notion that a state would legalize sex marriage was unthinkable in 1986; by 1996 religious and social conservatives were genuinely worried that it would happen in Hawaii, Alaska, or some place else. As it turned out, they were right. Vermont’s Supreme Court struck down its restriction on the right to marry as unfair to gays, and in response the legislature passed the nation’s first civil unions bill. The more vehement the attempt to stamp out a social movement once and for all, the clearer it is that the social movement is gaining ground.

When the justices first heard Bowers, most of them had very little acquaintance with the gay rights movement, and the AIDS epidemic was still surging. Much of America regarded homosexuality as immoral or unnatural or at least as abnormal. The Court’s treatment of the issue reflects these presuppositions. Chief Justice Burger and Justice White are said to have made distasteful remarks about gays during the Supreme Court conference following the argument, and their opinions show a palpable insensitivity to the rights of gays. Justice Powell, who cast the deciding fifth vote in Bowers, later said that in hindsight he regretted his decision, and that he might have changed his vote if he had ever met a gay person. This suggests that for people of Powell’s age, it was possible to spend one’s entire life without ever openly confronting homosexuality. In fact, Powell had met many gay people in his life, and had hired a number of gay clerks, including one clerk during the very term Bowers v. Hardwick was decided. He just didn’t know this, or else didn’t want to know.

There are interesting parallels to Eldred here. The free culture movement is relatively new. Although a fair number of young people tend to be sympathetic with it (because of their experience with things like peer-to-peer file sharing, the use of intellectual property to create their own websites and/or works of art), lots of other people, and in particular establishment types tend to see the movement as dreamers or pirates who are opposed to law and order, property rights and capitalism. The Supreme Court is stocked by Justices who are, to put it mildly, not technophiles; they don’t share the same cultural experiences and assumptions that motivate the free culture movement. The conservatives believe in protecting property rights and they generally don’t like innovative first amendment arguments unless they protect the rights of Christian conservatives, or business organizations. Thus it’s not surprising that there was very little sympathy for the arguments in made Eldred.

Losing in the courts in Eldred, just like Bowers, will lead social movement members to push for legislative and administrative reform. In large part this may be a good thing; social movements tend to atrophy or lose force if they rely too heavily on courts to push their constitutional claims and policy positions. An important difference, however, is that intellectual property law is largely federalized. That means that free culture advocates cannot easily begin in state and local fora, in the way that gay rights advocates did. They must concentrate their efforts largely in Congress and federal administrative agencies. That puts them at a comparative disadvantage. The fact that gay rights advocates could move to the states exemplifies one of the great advantages of federalism– not the federalism currently preached by the Supreme Court– which is largely used to protect states who wish to violate civil rights laws– but the basic structural idea that there are multiple legislative fora in which to press for social movement reform.

Finally, time is on the side of the free culture movement, just as it is on the side of the gay rights movement. The more comfortable people are with the new digital technologies, the more they will come to understand the value of arguments free culture advocates are making, even if they do not accept them in all respects. One suspects that we will also see increased vehemence in the attacks directed against the free culture movement as it gains support. My prediction is that the free culture movement's claims will win out, although not necessarily in precisely the way they are articulated today. No social movement gets everything it wants, but successful ones often lead to important changes in society. I think the free culture movement may, in time, have a profound effect on how we live our lives in the future.

In my next post on this topic, I’ll continue my discussion of the similarities between Eldred and Bowers. In particular, I will discuss the role that political parties play in the success or failure of social movements, both through legislative reforms and through the appointment of judges or justices who are sympathetic to the claims of social movement advocates.

Note-- I've added the second post following the first because the permalink does not appear to be working properly.

How Eldred v. Ashcroft is like Bowers v. Hardwick, Part II

This is the second of two posts on Eldred v. Ashcroft and how the result is similar to Bowers v. Hardwick. The first post can be found here.

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.


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