The choice to focus on courts has had its most fateful results with abortion, in which the lion’s share of liberal organizational energy has gone into desperate, rear-guard defenses of judicially granted abortion rights. Despite the work of groups like Planned Parenthood and NARAL, anti-abortion-rights advocates have captured statehouses in red states and many purple ones, with one-third of the more than 1,000 abortion restrictions since Roe passed in just the past decade. Roe failed to create a durable political consensus in favor of abortion rights, as occurred over the same period in Western Europe, where abortion rights were secured by legislatures rather than courts. This failure has been one of the key criticisms of Roe from pro-choice advocates, and RBG herself criticized Roe’s sweeping reach on these grounds in a 1985 essay, noting, “The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
If the Supreme Court has proved itself, time and time again, to be unwilling or incapable of advancing the liberal conception of justice, why have so many liberals, for so long, let themselves be victims of judicial gaslighting? Part of it is that the Warren and early Burger Courts painted a vivid, alluring picture of what justice by judiciary could look like. And even if liberals understood, deep down, that those two decades were an aberration in American legal history, the Court has given them just enough victories since then to keep the dream alive. For lawyers and law professors, there is also the simple matter of professional vanity: If the Supreme Court is the vanguard of American justice, then judges, and thus the lawyers who argue before them and the scholars who analyze (and, when necessary, chastise) them, are the nation’s most important profession—the priests and elders of the civic religion that is American constitutionalism.
Leah Litman: Progressives’ Supreme Court victories will be fleeting
Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competition—which, of course, is why it is so powerful. By contrast, law—whether through “neutral principles” or “reasoned elaboration” or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theory—holds out the promise of something objective, something True. To win in the court of the Constitution is to have one’s view enshrined as just, not only for today but with the promise of all time.