Countermobilization and the courts

It’s not every day that major bloggers are discussing the subject of my dissertation research, so I suppose I’ll dive in to the discussion between Nathan Newman and Kevin Drum. This is a rich subject, and there are many angles of which both have insights, but let me focus on this claim of Newman’s, which I think is central:

Since I am not arguing that progressives should start pushing less hard for gay rights, abortion rights and a secular society, my “retreat” point is to abandon the courts as a tool for promoting liberal social values. The reason is that courts uniquely alienate social conservatives. This is partly because of the sheer anti-democratic nature of court action, which frustrates them and leaves them feeling powerless, a recipe for encouraging conspiracy theories and populist agitation. But in court judgments, religious conservatives don’t just lose on policy — which the religious moderates could accept in a democracy — but are told that their religious motives are illegitimate…

This claim is compelling, and is very widespread in the literature on law and courts. In my view, there are only two flaws in the argument: there’s no theory and there’s no evidence. On the first point, I don’t think the various theoretical reasons advanced for the countermobilization thesis (that the public shares Alexander Bickel’s democratic theories, that the public cares about the quality legal reasoning of judicial opinions, that legal discourse can’t accommodate compromise) are very persuasive, and in the second case the claim is clearly wrong. This would be a long discussion, however, and at any rate the proof of the pudding is in the eating, so let’s talk about the empirical evidence. It should be noted, first of all, that the evidence adduced by Newman is not evidence for his thesis that the courts have a unique ability to generate opposition. The implication of the claim is the if legislatures were to pass a gay marriage law, it would generate less opposition; however, there isn’t any case of this happening, so the question is open. In addition, I could come up with countervailing anecdotes: for example, the broad anti-gay amendment passed in Colorado that was struck down in Romer v. Evans was the result of a backlash against ordinances passed by democratically elected city councils, or consider the backlash generated by Clinton’s attempts to integrate gays in the military.

Fortunately, there is a case that permits a comparative analysis, and it happens to be the case most often linked to the countermobilization thesis: abortion. What happened when some state legislatures legalized abortion in the years prior to Roe? One often hears a similar story about abortion that Newman tells about secularism: states were inexorably legalizing abortion, the Supreme Court jumped in and hurried the process, and as a result created a huge backlash to policy changes that would have happened anyway. This is what a I believed when I started my dissertation; but it is incorrect in every particular.Legislative liberalization of abortion before Roe generated a very powerful backlash.

It is crucial to understand this: by the time of Roe, liberalization of abortion laws by legislatures and initiative was dead in its tracks. Only one state liberalized its laws in the two+ years before Roe, and none did in 1972. After the first wave of liberalization, pro-life groups were extremely well-mobilized. In addition to their success in the legislatures, there are other reasons to doubt the countermobilization hypothesis. Public opinion on abortion did not change after Roe. More articles were written about abortion in the National Review in the 3 years before Roe than in the three years afterward. Pro-lifers were connected to the New Right well before Roe. There is more than I can provide here. We can never be 100% certain about counterfactuals, but of all of the things we would expect to find if courts wereuniquely likely to produce a backlash, none of them are true.

Even more devastating for Newman’s argument is the Canadian case. Canada has the most liberal abortion regime in the world–state funded abortion-on-demand–and this policy was created by the Canadian Supreme Court in 1988. Canadian public opinion on abortion before 1990 was essentially indistinguishable from American public opinion. And yet, Canadian abortion policy has been stable, the decision is popular–there has not been a major backlash. In the debates in last year’s elections, the discussion of abortion consisted of the other party leaders claiming that the Conservatives would pass abortion legislation, and the Conservative leader adamantly denying he would pass legislation restricting (in these exact words) “a woman’s right to choose.”

There are many aspects of Newman’s argument I agree with. He is right, for example, to point out that judicial review in American history has generally not yielded progressive results. But on this particular issue, I think the argument is incorrect. There is overwhelming evidence that, absent the Supreme Court’s intervention, abortion law would be far more restrictive than it is now. I think the same is true of church-and-state issues; I think it is highly implausible that there would be less entanglement of church and state had the Supreme Court not been involved. Progressives should be wary of courts, but unilateral disarmament is a terrible idea. The religious right has proved repeatedly that it will fight tooth and nail against policy defeats, irrespective of what political institution they occur in.