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The Backlash Argument Never Dies


Jonathan Rauch (via Sullivan) makes the familiar argument that for the constitutional challenge to Prop 8 to succeed would really be a strategic loss.   This is wrong, and if you don’t believe me believe Michael Klarman, who started his research sympathetic to arguments like Rauch’s and found that the facts just couldn’t support them.   Indeed, gay and lesbian rights provides a particularly strong example of the fact that there’s no way of winning hard-fought changes to the status quo that doesn’t generate opposition, and there’s no evidence at all that judicial opinions generate more backlash than the commensurate actions of elected officials.    The only way to avoid backlash is just not not win anywhere.

A related problem with Rauch’s argument is that he greatly overestimates the extent to which changes in public opinion will find themselves manifested in the actions of state legislatures.   This is a common issue with similar arguments made about Roe v. Wade.   Consider this recent one from Steve M.:

If we could go back, would we want to give up Roe to avoid the anti-abortion backlash, the violence, the relentless chipping away at abortion rights? I’m not sure — haven’t the antis chipped away at abortion rights and made abortion effectively legal only in a handful of states, just as it probably would have been without Roe?

Again, this backlash wasn’t just about Roe — indeed, the backlash against the initial move towards reform by state legislatures had caused the drive to liberalization to stall completely by 1973. And while the chipping away of abortion rights is indeed a serious problem, there’s no way that the situation isn’t much better than it was before Roe, when abortion was illegal in 46 states. Abortion being formally legal in all 50 states isn’t, in itself, all that is needed, but it beats abortion being illegal in many states (and it’s not as if states would have abandoned other regulations had Roe not happened.) As with gay and lesbian rights, the opposition to reproductive freedom was substantive, not procedural.

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  • Incontinentia Buttocks

    What’s interesting, however, is the number of people who continue to feel, in the face of mounds of evidence to the contrary, that procedural arguments have a massive popular base. And it’s not just in the area of these backlashes to judicial rights-discoveries. Think about all the energy wasted on “states rights” claims.

    A question I ought to know the answer to (but don’t): is this outsize role given to such procedural arguments by our national political elites a peculiarity of American politics, or does one see it as well in other industrialized democracies?

    • Scott Lemieux

      What’s interesting, however, is the number of people who continue to feel, in the face of mounds of evidence to the contrary, that procedural arguments have a massive popular base.

      Cf. also “Roe would have been accepted if only it had been justified with [insert pet theory here.]” Professionals have a tendency to assume that what they do matters to many more people than it actually does.

    • Josh G.

      A question I ought to know the answer to (but don’t): is this outsize role given to such procedural arguments by our national political elites a peculiarity of American politics, or does one see it as well in other industrialized democracies?

      I suspect it’s largely due to fetishization of the Constitution and the Founding Fathers.

  • TT

    Conservatives are absolutely willing to make peace with policy changes to which they’re fanatically and unalterably opposed so long as said changes are achieved via the legislative process. What has happened in our country’s history, especially recent history, that could possibly make anyone think otherwise?

  • Cols714

    I saw this at Sullivan’s and thought you’d be all over it.

    It is really stupid. If you want to end gay discrimination then you want to end it. Who cares if it’s by legislature or by courts

    • Murc

      Who cares if it’s by legislature or by courts

      … well, I do, actually.

      The procedural argument isn’t a bullshit one. We have procedures for a reason. LAWS are procedures. I imagine nobody here thinks Obama could simply repeal DOMA unilaterally, for example. He’s following procedure with regard to it.

      What is bullshit is arguing we shouldn’t do things because people won’t like it.

      • Cols714

        Following the courts and the legislature is following procedure.

      • T. Paine

        Right, but attacking unjust laws in the courts is procedurally legitimate. Judicial review of legislative and executive action is established by the Constitution. So (with the exception of Gavin Newsom), everyone seems to be following “procedures” just fine.

        Why are some procedural actions better than others? Or are we buying into the “unelected politicians in black robes” theory of opposition to the judiciary?

  • Joe

    It’s debatable, but the strongest case against Roe v. Wade was that it tried to do too much all at once. It was a different, more liberal activist time, so various differences there. The Prop 8 case won’t result, one doubts, SSM on demand or anything nation-wide. A win is a small step, one that the legislature and governor as well as probably a majority of the state agrees with anyhow.

    • Scott Lemieux

      Well, but that’s just “we avoid backlash by not winning” stated in a different form.

      • Joe

        How? It’s a win. My point is that the argument is particularly weak here because (quite strategically) the litigation is not really aiming for some home run. Olson/Boies opposed cert, after all.

        • djw


          You claimed Roe “tried to do too much all at once”. What does that mean to you?

    • T. Paine

      What do you mean, “tried to do too much all at once?” The Court should have said that abortion had to remain legal where it was presently allowed? Women should have certain rights in some states, but not others? I’m having trouble following your logic.

      • Joe

        First, I said “strongest case,” not that I actually accepted it.

        Second, it didn’t have to set up a trimester scheme, decide that abortions before viability were protected and so forth.

        I don’t understand where “women should have certain rights in some states” comes from. When 1A rights were at stake, e.g., the USSC slowly worked up to protecting speech in a very broad way, case by case, each small step protecting each state.

        Roe could have determined, e.g., that just having abortion when a woman’s life was at risk was unconstitutional, but letting the states ala how they did it with the death penalty in Furman, some time to experiment with how to properly regulate abortion.

        Then, over some a span of years, like the USSC did with civil rights for blacks (Brown-Loving, e.g.), the details would be filled in. The same will occur for SSM, probably. SSM won’t be protected in 50 states in June 2013, probably. But, the Roe approach would do that — it would take Walker’s opinion as the law of the land.

        I don’t think that’s advisable.

        • T. Paine

          Why not? I guess my question is, what’s the negative consequence from the Roe/Walker-opinion approach?

          Also, I’m curious if you think that the backlash after Brown v. Board was smaller/less harsh than it otherwise would have been without the preceding cases.
          I’m not convinced that the Court earned any legitimacy by taking a longer approach, and, in the meantime, more non-white people were denied their rights by all levels of government and their fellow citizens.

          Which leads me to another question: How are you evaluating decisions here? Level of backlash? Effectiveness in providing the substantive rights on the ground? Legitimacy of the Court?

          • T. Paine

            Bah humbug, messing up the tags. Just the case titles should be ital, and there shouldn’t be any bolding.

          • Joe

            I think the law should develop slowly, especially when major social change is involved. It’s how the courts handle things as a whole, case by case, as it did for the 1A, criminal justice and so forth.

            The courts have limited power as well. The decisions of the Warren Court were ignored and underenforced as is. I don’t see the value there of them trying to do more before society was ready. The exact details of desegregation can of course be debated.

            I’m evaluating things as a whole. Anyway, the LGBT community as a whole supports a careful approach. The DOMA cases were strategically taken. Boies/Olsen themselves chose to oppose cert.

            I’m inclined to trust their judgment as I would have trusted the NAACP’s judgment to work up to Brown and then work up to Loving.

            • Joe

              Merry Christmas, btw!

  • Murc

    I am pretty inherently sympathetic to procedural arguments. The Bush years radicalized me in this way; we have procedures, laws, rules, etc. for a reason, and those things should be followed. When one is a state official, with the weight and power of the United States government behind them, one should be MORE scrupulous in observing these procedures, rather than less.

    But I’ve never understood how that leads to ‘we shouldn’t do these things because people will get MAD!’ that backlash proponents use. The backlash or lack thereof is irrelevant to the arguments about hewing closely to procedure.

    And on a more practical level, I don’t think backlash takes the form that people think it does. When I think of Roes backlash, I think of people who ALREADY think abortion is wrong becoming radicalized and mobilized. What I don’t think happens, with either Roe, or gay rights, or anything, is people going ‘Gee, I was in favor of this thing before, but because it was implemented illegitimately, I’m now gonna dedicate my life to working against it.’

    To go back to an example I used in an above sub-thread, if Obama were to declare that DOMA were repealed by executive fiat, I would be pretty upset. But that upset-ness wouldn’t somehow translate into thinking DOMA had become an awesome law.

    • T. Paine

      But no one is doing that, with respect to DOMA or (historically) abortion.

      Indeed, with respect to abortion, if anyone is flouting procedure, it’s state legislatures and governors that are enacting flatly unconstitutional laws, or otherwise trying to find new ways of limiting access that violate the spirit, if not the explicit language of Roe and Casey.

  • rea

    Maybe we should all just crawl back into the closet to avoid bothering people. Surely, that is the way to socialist nirvana!

    • T. Paine

      Can I have the seat nearest the door, so I can spy on the people walking by?

      • IM

        You are endangering everybody, you radical!

  • Were there any right-wingers concern trolling with procedural objections to the years of litigation that resulted in Heller and McDonald? Did any of them think that the legislatures were the better way to pursue their policy goals?

    • Scott Lemieux

      In fairness, they would never have dreamed of using ligation based on ad hoc constitutional arguments to try to get the signature domestic achievement of the Obama administration struck down or anything.

  • Just Dropping By

    I think the “backlash” risk is dramatically different in the context of SSM versus abortion for at least three somewhat interrelated reasons.

    (1) SSM is a public act (that’s really the whole point of marriage in general), while abortion is virtually always a private one. Thus, as SSMs proliferate, members of the general public will become increasingly aware of same-sex couples in their neighborhoods, workplaces, etc., building familiarity and reducing resistance.

    (2) The vast majority of people have positive emotional associations with the idea of marriage in general. Emotional appeals to low information voters thus at least somewhat favor SSM. (“How can you deny somebody the right to marry the person they truly love?”) Abortion, on the other hand, is overwhelmingly viewed in emotionally negative terms even by its proponents — virtually no one is “pro-abortion,” only “pro-choice.”

    (3) SSM is an ongoing condition, rather than a one-off event like abortion, which ties into points 1 and 2. Revoking SSM means either forcing the dissolution of existing marriages or creating a bizarre situation where SSMs that took place before some arbitrary date are valid, but no new ones are allowed. Either option would likely appear “unfair” to low information voters, such that many of them who would oppose recognizing a right to SSM in the first place would still be opposed to revoking the right once it exists.

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