Less on Courts

Former ACLU Chief and current NYU Law Professor Burt Neuborne has more on the theme I hit upon in my first Progressive Column, namely, that liberals need to depend less on Courts and more on politics if they truly want to achieve their objectives. Money quote:

"In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning...

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. The high moral ground was ceded to opponents who stressed its moral complexity. The progressive response was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. That may be fine for courts, but it does not persuade ordinary people. In the early 1990s Ginsburg, by then a judge on the Court of Appeals for the DC Circuit, recognized the problem and urged that Roe be defended politically, not on its own terms but as a matter of necessity in order to permit women to function equally in the society. She was shouted down by lawyers afraid of weakening the precedent. It's not too late to take her advice."

Thanks to Eugene Volokh for the link.