BY PIA OWENS
Three distinguished panelists gathered Monday evening to discuss “The Fate of Progressive Politics in the Face of a Conservative Court” on a panel sponsored by the Civil Rights-Civil Liberties Law Review. The panelists – Professor Michael Klarman, civil rights activist Cheryl Jacques, and Judge Jed Rakoff of the Southern District of New York – talked with moderator Professor Martha Minow and the crowd of students about the interplay of the law and social change.Professor Klarman started off by arguing that court decisions that push social change result in backlash. He presented statistics showing that the majority of Americans opposed the death penalty until the Supreme Court’s 1972 Furman v. Georgia decision, which held the death penalty unconstitutional as applied in Georgia and Texas. Within months after Furman, most Americans were in favor of the death penalty. As another example of backlash, he brought up the 2003 Goodridge decision in Massachusetts that opened the door to same-sex marriage in the state and the sharp increase in state anti-marriage equality statutes that followed.Offering a counterpoint on the backlash theme, Cheryl Jacques explained that there was never a perfect time to push for social change. Controversy is rarely politically expedient – there is always an election approaching or a candidate who needs to build political capital. In addition, she said, backlash can be misleading. When she was a state senator, Massachusetts politicians stayed away from the divisive topic of benefits for domestic partners. After civil unions passed in Vermont, however, domestic partnership was no longer a political minefield. Now that marriage is on the table, Americans are increasingly in favor of civil unions. Judge Rakoff opined that judges should not consider broad social consequences when making decisions. When asked if the Supreme Court should have more of a policy-shaping role than lower courts, he pointed out that the Supreme Court could use denial of certiorari selectively to determine which social issues to address.The three panelists discussed how law tracks social change. Primarily sticking to the examples of the civil rights movement, marriage equality, and abortion, they talked about how the Supreme Court tended to anticipate social change and shape the law accordingly, with varying results. At one extreme, the Supreme Court denied other interracial marriage cases before hearing Loving v. Virginia in 1967. By the time it decided Loving, many states had already struck down anti-miscegenation statutes – the issue was no longer controversial. At the other extreme, Brown v. Board of Education set off violence and major social upheaval. Professor Klarman pointed out how in this case, “the backlash had a backlash”; Brown resulted in an even more oppressive environment in the South, which brought national attention and sympathy to the civil rights movement. A recurring theme was the unpredictability of social change. On the subject of civil rights for gay people, one student asked about the strategy of waiting until today’s young people, who are increasingly supportive of equal rights, are in power. The panelists agreed that although such a strategy might seem logical today, attitudes may change in the future. For instance, thirty years ago, no one could have predicted the influence of the religious right on politics. Cheryl Jacques brought up Roe v. Wade as a prime example of the Supreme Court thinking it was following a change in social attitudes, but miscalculating – in 1973, when most of the country favored reproductive freedom, no one could have foreseen today’s abortion battles. By the end, the panelists had constructed a framework for law and social change. Courts tend to see changes coming and shape the law accordingly – not out of judicial activism, but rather to adapt to changing times. Often, these decisions have unexpected consequences which send social change off in a different direction.