...Throughout this history, Breyer says repeatedly, we can all take satisfaction in “the general tendency of the public to respect and to follow judicial decisions.” Take that respect away and
what, then, would have happened to all those Americans who espoused unpopular political beliefs, to those who practiced or advocated minority religions, to those who argued for an end to legal segregation in the South? What would have happened to criminal defendants unable to afford a lawyer, to those whose houses government officials wished to search without probable cause, to those whose property government wished to seize with little or no compensation?
That’s an excellent question, but an incomplete one—for no history of the Court can have any worth if it does not also ask what did happen to the generations of Black Americans doomed to segregation after the Civil Rights Cases and Plessy, to the generations of children who coughed their lives out in the mines and mills after the Court voided federal child labor laws, to the workers who lost the right to unionize when the Court invalidated restrictions against “yellow dog” contracts, to the 120,000 Japanese and Japanese Americans confined in concentration camps approved in Korematsu v. United States, to Native people whose religious practices the Court has treated with contempt in Lyng v. Northwest Indian Cemetery Protective Association and Employment Division v. Smith, to the victims of police violence who to this day can never receive justice because of the Court’s extreme solicitude for law enforcement, to the inmates who die in agony because the Court has lost interest in policing states’ grotesque methods of execution?
Has the Court really, on the whole, advanced human rights and democracy more than it has retarded them? There is a serious case to be made that American society would be freer and happier without the Court’s periodic invalidation of federal and state statutes—that Congress has been over time a far more dependable steward of individual rights than has the Court (or the executive branch). Congress wrote the Thirteenth, Fourteenth, and Fifteenth Amendments as a rebuke to the antebellum Court; a century later, the House and Senate passed the Civil Rights Act and the Voting Rights Act, the twin pieces of legislation that actually brought down southern apartheid.
Breyer surely knows of that argument, but he is unwilling to confront it. Though he admits that the Court has had “ups and downs,” we are by and large asked to take its majesty on faith.
No comments:
Post a Comment