This term at the Supreme Court was a nearly unmitigated disaster for progressives. By 5-to-4 votes, the justices upheld limits on abortion, dealt a staggering blow to school desegregation, lacerated campaign finance reform, made it harder for women to sue for equal pay, curtailed the free speech rights of students, loosened various legal restrictions on business and greased the skids for convictions in death penalty cases.If you can get past the hyperbole, you can begin to see what liberals are afraid of, the slow dismantling of "the liberal" protections brought to life in the Warren Court. While Lazurus starts off lamenting the right ward lean of the Court, he makes a terrifically salient point about the liberal reliance on the Court to advance their agenda.
Cumulatively, the court of Chief Justice John G. Roberts Jr. announced itself as even more conservative than William H. Rehnquist's court, which, from 1986 to 2005, undercut many of the progressive initiatives from Earl Warren's era. The Roberts court also showed little regard for the court's own precedents, overruling or eviscerating a slew of past decisions that did not conform to conservative principles.
When the shock wears off, however, progressives will have to ask themselves whether they should ever have expected (or sought) so much from the judiciary. And they should think about what they can realistically expect in the future. The progressive approach to looking to the judiciary for social and political salvation has always run against the grain of history. And if progressives are going to advance their agenda in court going forward, they probably will need a significantly different strategy and focus.Many people have pointed out that the liberal strategy, which proved effective during the Warren era was dependent more upon the personality of that Court's membership rather than the effectiveness of their argument or strategy.
Toward the end of his piece, Lazarus starts to break down what the liberal wing must do in order to deal with a Court whose right ward shift is is neither new or nor likely to change.
This forbidding reality all but forecloses any additional advancement in the judiciary on the two broad progressive legal planks of the modern era.When did it become the "truth" that only liberals can defend and protect minorities or women against "discrimination?"
The first of these is what could fairly be called the "equality agenda" -- the battle to redeem the Constitution's promise of equality from the grip of Jim Crow and a history of discrimination against women and minorities. To a significant degree, this agenda has become a victim of its own success. Led in no small part by the court, the nation has placed itself indelibly on record as aspiring to a society in which people of both sexes and various races, ethnicities and religious groups receive equal treatment under law. But to the extent that we are not yet one nation -- one people -- all equal in rights and opportunities, progressives will now have to turn to forums other than the court for further progress.
The fact is that much of the liberal "anti-discrimination" agenda sets out classifications based upon the very factors their agenda proposes to elminate. Anytime you set up a classfication based on a race or ethnicity or gender or sexual orientation or whatever, no matter how altruistic your motive, you discriminate. The Constitution and the 14th Amendment are colorblind. Affirmative action, diversity, women's rights and the ERA, are all based upon the concept that the way to help minorities succeed is to have some rich, white, often male and certainly paternalistic, do-gooder to help them. When instead of ending the discrimination, all the liberals have done is to relive, rehash and remind everyone about past discrimination.
But Chief Justice Roberts made the conservative, and most effective, case about ending racial discrimination when he wrote that the best way to end racial discrimination is to stop discriminating by race. Roberts and the conservatives on the Court understand better than the liberal wing--you can't go back in time and change the past and you cannot use today's circumstances to make up for the past. The best you can do is make sure such discrimination does not happen again.