Our impotent Supreme Court

The marriage cases demonstrate that the Court does not drive social change. It merely reflects it after the fact

By Paul Campos

Published March 27, 2013 7:48PM (EDT)

The Justices of the Supreme Court                                (Wikimedia Commons)
The Justices of the Supreme Court (Wikimedia Commons)

This week’s arguments before the Supreme Court on the legality of anti-same sex marriage laws illustrate two inter-related truths.

First, contrary to the widespread belief that the Court plays a key role in fighting what has been called the culture wars, the cases now before the court are excellent examples of how, in regard to culture war issues, the Court almost invariably reflects, rather than creates, social change.

This claim is heresy to the ears of aging law professors, who grew up in a world in which it was taken for granted, for example, that (relatively) liberal federal courts in general, and the Supreme Court in particular, played a major part in advancing various civil rights agendas from shortly after World War II until the Reagan revolution.

But that belief has been largely discredited. As political scientist Gerald Rosenberg demonstrated more than 20 years ago now, even the most famous and controversial Supreme Court decisions, such as Brown v. Board of Education and Roe v. Wade, have had only limited impact on the American political process.  For example, on the one hand, legal segregation was as a practical matter ended in the United States by legislation, not court decisions. On the other, in many parts of the country, schools today are as segregated as they were prior to the Brown decision.

Similarly, legislation was making abortion legal in many parts of America prior to Roe v. Wade, and, while abortion is technically legal everywhere, nearly nine out of 10 counties in the nation have no abortion providers, and a large minority of women must travel at least 50 miles to get an abortion.

As over the next few years same-sex marriage becomes both widely available and increasingly recognized as legitimate throughout the United States, this development will in the end have little to do with the courts, even in the unlikely event that the Supreme Court declares the existence of a constitutional right for people of the same gender to marry each other.

This is because, as in the cases of race discrimination and reproductive rights, the cases currently before the Court are only there because of fundamental changes in American culture. A majority of Americans now support same-sex marriage. More significantly, overwhelming majorities of young people support the existence of such a legal right.

To the extent the Supreme Court does anything in this area, it will simply be acknowledging a new social reality, rather than exercising its (largely imaginary) power to bring that new society into being.

Second, the amazingly rapid ongoing collapse of political resistance to gay rights, in a country where just a generation ago the very concept of gay rights was considered the epitome of radical left-wing politics, highlights the extent to which the Republican Party in its present form is doomed.

The core activist constituency of the post-Reagan revolution GOP is made up of culture conservatives, and, in America today, the cultural conservatives are being routed. For the past three decades, the Republican Party has lived off three ideas: taxes are too high, especially on wealthy people; we should invade other countries from time to time in order to keep us “safe”; and we need to protect “traditional values” (meaning the values of cultural conservatives).

This is no longer a viable political platform.  Americans have tired of a system in which the rich keep getting richer and the poor keep getting poorer; they have gotten sick of splendid little wars that never end and accomplish nothing; and “traditional values” as defined by the GOP’s activist base get more unpopular every day.

This week’s goings-on in the Supreme Court merely put an exclamation mark on the latter point.

Paul Campos

Paul Campos is a professor of law at the University of Colorado at Boulder.

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Abortion Abortion Clinics Gay Marriage Gay Rights Law Segregation Supreme Court