CURMUDGEON DEATH MATCH

The Curmudgeonly Clerk punctures the hot air of my optimism balloon, here. Appropriately enough, he/she/it is responding to my post below, entitled "Curmudgeonly thoughts on Grutter v. Bollinger". Here's the passage:

The reasoning process that undergirds Marston's optimism, however, is simply incredible. Couldn't the very same rationale be advanced in favor of overruling Roe v. Wade, deconstitutionalizing the abortion issue, and leaving the matter to public debate? Will Marston be similarly consoled by this facet of the decision if Lawrence v. Texas upholds Bowers and/or the state's sodomy law?

It seems to me that the sort of silver lining that Marston perceives in Grutter is probably one that is visible solely to those who are, more or less, comfortable with the decision's ultimate outcome. Or am I being too curmudgeonly?

Spot on, in one sense. The very same rationale could be advanced if the Court upheld Bowers and overturned Roe, and I would advance it. This doesn't mean that I would be happy with all aspects of the result of these hypothetical rulings -- life is, after all, a mixed bag. But the major lesson over the past few Supreme Court terms has to be that courts can do good, but the (atypical) Warren Court taught liberals to expect too much from the courts in general.

Affirmative action is a great issue because it shows that as much as conservatives rail against judicial tyranny, they, too, want to win the judicial constitutional interpretation lottery when it comes right down to it, and they, too, have a primarily results-based approach to constitutional law. Even though partisans are no doubt often sincere in the vehemence with which they articulate their constitutional objections to affirmative action, as far as I can see it, the constitutional arguments concerning affirmative action lean in the direction of allowing the practice; reasonable people can look at text, original intent, and precedent and certainly disagree with that assessment, however. And on my first pass through the recording of oral argument, I am struck by how often affirmative action opponents whip out their constitutional claims whenever the policy questioning gets tough. It's hard not to see the constitutional arguments as primarily shutting down dialogue here. Dialogue doesn't solve all problems by any means, but in this case we should be happy if we have more of it.

On the policy side, the question is closer, I think. It's no surprise that the "original intent" of the Reconstruction Amendments is downplayed in all of the opinions in Grutter and that even the disputes on the Court seem to hinge on whether or not affirmative action is really a good policy, all things considered. Somewhat obliquely, I noted my own policy-based objections in my post below. To my mind, the strongest objection to affirmative action is squarely political: it divides disadvantaged constituencies, who should in fact unite in favor of redistributionist policies.

But I shouldn't duck the real question that the Clerk implies, which is, I take it: "under what conditions should people be happy with an unfavorable result in the courts?" I don't have a principled answer to that question, I'll admit. But in Employment Division v. Smith, for example, Galen and Black went back to the state legislature and got an exemption for their religious use of peyote. And after Bowers (in response to the Clerk, should I say " even after Bowers?"), gay rights activists have been pursuing a multifaceted strategy that does not rely on litigation alone. Winning in the Courts is not everything; those who don't like decisions should take solace in that fact, and those who do win should also take heed -- as the history of anti-abortion activism after Roe shows.

MORE: my grad school colleague Willem Maas writes in with this quote from Gerald Rosenberg's excellent book, The Hollow Hope:

"one result of litigation to produce significant social reform is to strengthen the opponents of such change." Citing civil rights and abortion cases, Rosenberg writes: "While I have found no evidence that court decisions mobilize supporters of significant social reform, the data suggest that they may mobilize opponents." (342)