A few months ago, David von Drehle wrote a piece in the Washington Post, raising some good points about the tendency of certain factions on the political left to rely upon litigation to achieve what they cannot necessarily accomplish at the ballot box.
Half a century after the triumph of Brown v. Board of Education, the landmark desegregation case, reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives. The recent battle over gay marriage, in courts and at the ballot box, demonstrates that liberals today are more adept at persuading like-minded judges than they are at persuading undecided voters. Over the past 40 years, while progressives were winning dozens of controversial court cases on issues ranging from abortion to school prayer, the Democratic Party failed nine times out of 10 to win a majority of the votes for president.Today, being right on top of things, in the National Review Online, Neil Gorsuch takes note of von Drehle's column:
There's no doubt that constitutional lawsuits have secured critical civil-right victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.Of course, there is a counter-point in relation to groups such as the ACLU, who use litigation not to win popularity contests, and certainly don't hesitate to litigate issues where popular opinion is against their client (many of the ACLU's members, for example, opposed the right of the KKK to march through Skokie, Illinois, and many resigned their memberships over its choice of client), but because there is literally no other means of protecting those constitutional interests. And not even the NRO is willing to attack liberals and progressives for advancing the civil rights movement through litigation - although their ideological peers at the time were not so taciturn on the issue.
But the more interesting aspect of this, at least from where I stand, is the complete absense of any mention of the use of litigation by the political right to advance its own agenda. The army of lawyers, for example, the Republicans had stationed across the country on November 2, ready to scurry into court to litigation election issues. Which, of course, would have been a repeat of the lawsuit filed in the name of George W. Bush, to stop Florida's courts from applying their own interpretation of their own constitution and election law to an election recount. But the better examples probably come in "property rights" cases, where the right has used litigation to chisel away at state and local zoning ordinances, environmental protections, and land use regulation. Or the near-invisible litigation that chisels away at the rights and protections of individuals, often in the name of "originalism" or "strict construction" of a statute, to effect changes in the law that a Republican legislature would be loathe to present as an election issue.
I personally believe both the political right and left should spend less time going to court, a lot less time trying to mislead the public or misrepresent the other side's agenda, and that their political representatives should spend a lot less time getting their palms greased by lobbyists. But... what are the odds?