Oy. It's Roberts.

E.J. Graff

July 20, 2005

E.J. Graff, a resident scholar at the Brandeis Women's Studies Research Center, has most recently collaborated on Evelyn Murphy's book Getting Even: Why Women Still Don't Get Paid Like Men - And What To Do About It, forthcoming in October.

Okay, so to replace Sandra Day O'Connor we've got a blue-eyed straight white guy, John G. Roberts. He's a 50-year-old Washington insider and member of the Federalist Society, clerked for Rehnquist, worked in the Reagan and H.W. Bush Departments of Justice, and has argued against Roe and against environmental regulations. And he has a slim enough paper trail that, unless he's got a corpse in his basement or a kinky ex-girlfriend hiding somewhere, he'll probably get in.

Oy. Roberts has all kinds of potential to be the Thomas/Scalia clone that Bush has been promising—except with strong enough social skills that he might actually be able to persuade a majority of his fellows to sign his opinions. So while you're contemplating two decades of judicial antagonism to everything we hold dear, keep this in mind: While the Supremes are important, they are not the last stop for social justice.

Yes, most progressives would like the Supreme Court to be the defender of minority rights, the protector of the downtrodden, the cop to whom we can run for safety when the majority is on a dangerous rampage. (In fact, that's what we'd like from our government as a whole.) But if they're not, it's not as bad as, say, Bush's election. The Supreme Court is one power outlet among many in our nation's public policy electricity grid. If Roberts tilts the court further to the right, progressive advocates will just have to find other ways to win.

Few non-lawyers realize that, for more than two hundred years, the court has constantly been shifting its job description. Some courts have taken as their mission the protection of property rights, as defined in the Constitution—whether that's protecting the right to own slaves, or protecting business owners from intrusive government regulations (like, say, child labor laws). Others have crusaded for free speech and for freedom from religion in the public square. And always they are in intimate conversation with their era, batting beliefs back and forth with the Congress, the president, the media, organizations and the general public climate. And not one of them has had the final say. 

Let me repeat that: No Supreme Court ever has the final say on a contentious public issue. The infamous 1857 Dred Scott decision, which upheld slavery, was undone by the Civil War. The infamous early-20th-century Lochner court, which brazenly struck down labor laws, was eventually forced to give in and accept FDR's New Deal. The Rehnquist court decided in 1995 and in 2000 that South Boston's St. Patrick's Day parade and the Boy Scouts, respectively, had a right to keep out lesbians and gay men if they wanted to. And yet the St. Patrick's parade and Boy Scouts' decisions still moved gay rights forward—because in response, many mainstream columnists, voters and parents were outraged to learn that such unfair treatment existed and was legal.

Let's stay with lesbian and gay rights for a minute, as a way to look at the back and forth between the court and the culture. The Supremes first decided in favor of lesbians and gay men in 1996's Romer v. Evans, striking down a Colorado amendment that banned lesbians and gay men from much of the political process. The decision itself was a genuine victory, and it stopped a particularly vicious type of state anti-gay organizing. But the decision itself has almost never again been cited, and antigay organizing simply shifted over to passing statutes and constitutional amendments about marriage and domestic partnership. Similarly, in 2003's Lawrence v .Texas, the Supremes overturned a decision issued just 17 years earlier and struck down the remaining state sodomy laws. Many lesbians and gay men nearly levitated with joy at being declared citizens instead of potential felons. But the decision has been construed very narrowly, so narrowly that its effects have been almost entirely symbolic. And given the current touchy political climate, LGBT advocacy groups are trying hard to keep cases out of the federal courts—lest a win send Congress running to amend the U.S. Constitution in ways that would harm gay and lesbian partners and their families for a generation. When it's not the right time for a federal lawsuit, there's plenty else to be done. And so both the pro-gay and anti-gay movements are still skirmishing in the field, via mass media, legislative proposals, constitutional amendments, lawsuits, public protest, storytelling and all the rest.

Equally instructive is the case of reproductive rights. Set the wayback machine to 1873, a time when the birth rate was dropping rapidly, and when Anthony Comstock persuaded Congress to make it a federal crime to use the U.S. mails to distribute "obscene, lewd or lascivious" materials—i.e., information about contraception methods, educational pamphlets on STDs, condoms, "French" playing cards and so on. Fast forward past Margaret Sanger's notoriety and jail sentences for founding Planned Parenthood to educate women about contraception and to distribute condoms, spermicidal jelly, diaphragms and the like. Now jump past 1965 and 1967, when in Griswold v. Connecticut and Eisenstadt v. Baird,  the Supremes finally struck down the last Comstock laws banning the sale and use of contraception. In 1973, a few years after the beginning of feminism's second wave, the Robed Ones issued Roe v. Wade. Even though it came one full century after Comstock, Roe did not even come close to ending the debate over whether a woman has the last word about her own uterus.

Of course Roe mattered: A generation of middle-class women have been able to end pregnancies without being maimed or killed, thank God. But the other side has since chipped away at Roe through pickets, lawsuits, legislation, regulations, media campaigns, sermons, televangelism, virginity pledges, waiting periods, parental notification laws and all the rest—in effect denying abortions to many young, poor, raped, rural or sick women who have the misfortune to live in red states. Meanwhile, what with recent FDA rulings and the "pharmacists of conscience" movement, even Comstock's restrictions on contraception are being revived.

Yes, of course I would profoundly prefer that O'Connor's—and, eventually, Rehnquist's—replacement be reasonably moderate rather than radically conservative. Yes, of course I hope the Democrats have the discipline to go to the wall and reject Roberts if he turns out to have an ugly record that hasn't yet hit the news. But assume the worst: that Roberts is as bad as we might fear, that he gets confirmed, and that Rehnquist's replacement is just as bad. Keep in mind that the Supreme Court has never issued a decision that ended a social debate. The court is an intermediate stop, a resting place for a particular line of social thought. For good and for bad, every Supreme Court decision can be overturned or undermined, with enough organizing, determination and skill.

The pursuit of social justice is a marathon, not a sprint. Justices matter, and they matter a lot. But you can't win in court unless you also win in the court of public opinion—and even those are temporary, needing constant reinforcement. After the next appointment, we'll have to go back to our messy day-to-day, year-to-year, century-to-century debates over what we're talking about when we're talking about truth, justice and the American way.