Pros and Cons - Debbie Newman, Ben Woolgar 2014

Social movements: courts v. legislatures
Section B. Constitutional/governance

Many of the great landmark moments for liberal social movements that live in the popular imagination today are decisions of the US Supreme Court; Brown v. Board of Education of Topeka abolishing school segregation, Roe v. Wade legalising abortion, or Lawrence v. Texas striking down Texas’s anti-sodomy laws. Yet plenty of other countries achieved the same things through legislative change: the Wolfenden Report, for instance, which led to decriminalising homosexuality in the UK; or the Irish referendum on divorce in 1996. Precisely which social movements are at issue will vary across countries; gay rights will be an issue in many, but some still have illegal abortion, issues over women’s rights or racial discrimination. An interesting new area for this debate is socio-economic rights, such as rights to housing and education; these were placed, for example, in the 1996 South African Constitution, which has led to a series of judgements there.

Pros

[1] Courts are not susceptible to electoral pressure, and as such, even when populations may have regressive views, they can introduce liberalising measures. For instance, long before the Civil Rights Act of 1964 in the USA, the Supreme Court banned segregationist measures. Even though support for abortion in Ireland today is minimal, courts have upheld a woman’s right to choose. They are thus especially good enablers of social movements.

[2] Many countries have constitutions which encode the basic value of equality between persons, and are made their guardians. But often these general pronouncements need filling out with specifics, and elected politicians are slow to do so. Courts then fill this gap by deciding on specific rights.

[3] Once courts have made a decision, they tend to stick to it; ’legal’ answers are much less variable than political ones. Moreover, courts tend to command a degree of respect not held by elected leaders, and so their decisions are more likely to be abided by. For all the public excitement over the abortion issue in the USA, the right is basically undisturbed today.

[4] A court battle, because it involves convincing only a small number of judges, is much cheaper than a democratic campaign, and so is more likely to succeed as a strategy for a small, under-resourced organisation. Thus the Californian gay rights movement could not defeat the well-funded church groups campaigning for Proposition 8 against gay marriage, but were able to win a court battle on the same issue.

Cons

[1] Courts may well be more regressive than their electorates. Judges come from a small elitist cross-section of society, and have often been appointed for their political views; for instance, the justices of the US Supreme Court are highly politicised and sectarian, and only reach liberal decisions when liberals are in the majority.

[2] Courts do not have unlimited power to just ’be liberal’; they are bounded by what the law allows them. Some countries do not have constitutions, and others do not have any kind of substantive Bill of Rights that allows judges to extend equality. Indeed, often, as in the case of abortion in Ireland, the regressive measure is actually built into the constitution. As such, there is nothing courts can do; only the legislature can act.

[3] Legal answers may be more durable, but they are less respected precisely because they are seen as judicial ’impositions’ on the people. In such cases, the measure may be overturned by the electorate, or judges may be stripped of their powers; Franklin D. Roosevelt’s plan to stack the Supreme Court with his supporters when it struck down several New Deal measures in the mid-1930s is a key example. Moreover, without changing attitudes, changing the law matters little; the judicial decriminalisation of homosexuality in South Africa has not prevented widespread ’gay bashing’ and ’corrective rape’ of lesbians.

[4] Lawsuits are very expensive, especially when the other side can hire armies of well-paid lawyers. Moreover, campaigning to change the public’s mind and getting them to put pressure on their representatives form a virtuous circle. When public support grows, so do donations.

Possible motions

This House believes that social movements should pursue change in courts rather than legislatures.

This House believes that change is more likely in the courtroom than in parliament.

This House believes that Britain should withdraw from the European Court of Human Rights.

Related topics

Democracy

Civil disobedience Judges, election of

Written constitution