The Constitution, the Court, and Social Change
How much does the Supreme Court matter for social change? It is very important, but maybe not quite as important as you think, argued Radcliffe Dean Tomiko Brown-Nagin at the Institute’s most recent Radcliffe on the Road event, at the Harvard Club of New York. Here, excerpts from her talk.
October 3, 2018
How much does the Supreme Court matter for social change? It is very important, but maybe not quite as important as you think, argued Radcliffe Dean Tomiko Brown-Nagin at the Institute’s most recent Radcliffe on the Road event, at the Harvard Club of New York. Here, excerpts from her talk.
I’m not here to argue that the identity of a Supreme Court justice is unimportant. On the margins, identity can matter, although not nearly as much as people assume.
Nor am I here to directly engage the assumption that the Court is uniquely situated to protect against tyranny—although I’ve written about that question, and in short, I’d say don’t count on it.
My thesis is at once more narrow and broader; it relates not only to the Court, but to our entire constitutional design and democratic system.
I hope to persuade you that rhetoric about the Court’s role and impact—and about who sits on the Court—promotes a far too court-centric understanding of our constitutional democracy.
The overemphasis on the Court minimizes the role of “We the People”—as voters, donors, and members of interest groups in the legal order.
The particular point I want to make about law and social change is that movements deploy “rights talk” to frame disputes, tell stories, and move forward their agendas. They invoke legal discourses in four major ways: to make legal claims; for moral suasion; for cultural identification; and for political mobilization.
Which is to say, law is deployed strategically and opportunistically. Law and social change is about much more than winning a case in the Supreme Court.
So, here’s the puzzle. If I’m correct—if SCOTUS typically has not been the heroic actor in struggles over social change—why have we come to place so much trust in the justices to protect against tyranny and inspire change?
It all goes back to the post-WWII era, to 1954 and the struggle over segregation in the South. The five cases that Thurgood Marshall brought challenging school segregation under the 14th Amendment ended up in the Supreme Court. As we know, Marshall prevailed on behalf of his clients.
The unanimous Brown case came to be seen as a textbook example of nine justices siding with a discrete and insular minority and against a majority bent on oppression.
The justices became the heroes of the story, and Thurgood Marshall became a legend in his own time.
In the coming years, commentators praised Brown as the greatest constitutional case of the 20th century.
So there it is. The outsized reputation of SCOTUS, and the fever pitch over who is nominated, all comes down to Brown—no matter that the case gives a misleading impression about the Court’s role in social change.
