With Justice Stevens’ retirement, what is the future of the Roberts Court?  Responding to critics, Jeffrey Rosen and I introduce some realism into debates over what one can expect out of the Supreme Court.  You can read what we say on the subject in our recent piece in The New Republic. http://www.tnr.com/article/politics/the-battle-over-the-court


In San Francisco, they are trying the constitutionality of a referendum overturning same-sex marriage.  The Supreme Court barred broadcasting.  This makes little sense given that popular opinion in the long term will decide this issue.

I just published an op ed in the Lost Angeles Times on the subject.  This is what I said:


Prop. 8, the trial that should be seen

It’s more than a legal case; it’s a morality play aimed at all of us, and we should get to hear it.

By Barry FriedmanJanuary 15, 2010

It’s too bad the U.S. Supreme Court ruled Wednesday that California’s Proposition 8 trial on same-sex marriage — Perry vs. Schwarzenegger — may not be broadcast beyond the courthouse. Like the Scopes “monkey trial” with which it is sometimes compared, Perry is not a legal case in the strict sense. It is a morality play aimed at all of us, speaking in a sense for all of us, and we should get to hear it.

In 1925, the national media descended on the small mountain town of Dayton, Tenn., to watch legendary lawyer Clarence Darrow go up against Populist leader William Jennings Bryan. The ostensible basis for the suit was whether barring an instructor from teaching evolution violated his rights. In truth, Scopes became a stage play reflecting a brewing public debate between fundamentalist Christian values and enlightenment scientific positions. The trial was covered by hordes of print journalists and was the first to be broadcast nationally by radio, and countless Americans tuned in.

The parallels with the Perry trial are telling. It too is peopled by star lawyers, most notably David Boies and Theodore Olson, who faced off in Bush vs. Gore and have now joined hands in support of gay marriage. The issue is equally fundamental. And what happens in San Francisco may be the first step in the resolution of an issue that not only affects, but implicates, us all.

The question of cameras in the courtroom involves a trade-off between every citizen’s right to watch the processes of government and fairness to the parties, witnesses and jurors. It is all the more complicated here by questions of whether the trial court followed procedures in allowing the broadcast in the first place.

But Perry, like Scopes, is no ordinary trial. In most court cases, something happened, and the purpose of the trial is to ascertain exactly what that was. Did the defendant mug the victim or cook the corporation’s books; was a company negligent to design the car the way it did? When it comes to courtrooms, we worry about fact-finding biased by the presence of cameras, and about witness and juror safety.

The questions being tried in Perry are of an entirely different nature. To “prove” their case, the plaintiffs must show that California has no legitimate — let alone compelling — interest in regulating who gets married. So the witnesses are “testifying” about the history and meaning of marriage, the profoundness of their love for one another, the morality of homosexuality and animus about gays. Guess what. Legal procedure won’t resolve these “facts.”

The participants in Perry are already on camera, like it or not. The case is part of a national drama over gay rights in which the participants choose to take a part. There is one legitimate concern about cameras. Opponents of Proposition 8 have used modern technology to “out” the donors to the campaign against gay marriage, and some of the latter have been harassed.

This sort of behavior is troubling no matter who engages in it; the law protected donor lists to the NAACP in the South for similar reasons. But, as the Supreme Court dissent pointed out, the witnesses already are fully in the public eye.

The current trial is but the first step on a ladder that was always designed to end in the Supreme Court. Cases like Perry have almost nothing to do with the parties in them (though those parties will surely be affected). They are aimed at social change, and in this dispute, some see the Supreme Court as the brass ring.

The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls.

That’s why the plaintiffs in Perry want the trial televised, and the defendants do not. There’s a huge national to and fro going on over gay marriage. The plaintiffs hope to out the opposition to gay marriage as nothing but irrational hatefulness. The trial record is intended to be Exhibit A in the Supreme Court. But to prevail, the plaintiffs and their supporters ultimately must capture the hearts and minds of the American people.

The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?

Many proponents of same-sex marriage in the gay community opposed the Perry litigation, believing that the suit came too quickly; that public opinion is unsettled. Scopes may be instructive here as well. John Scopes lost and paid a small fine, though even that was overturned on appeal. But the real effect of the trial was to embolden creationists; it potentially set back the widespread teaching of evolution for years. The issue of creationism — now called “intelligent design” — was “tried” in Pennsylvania in 2005; it has not gone away.

It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.


The Obama Administration has been slow to fill federal judicial vacancies.  This may be in keeping with the President’s view that social change should occur through the democratic process.  But he should bear in mind that the long-term fate of social change often rests in the courts, which can step on – or ratify – the work of political movements.

The New York Times reported this weekend on the Obama Administration’s lethargic rate of judicial nominations.  In addition, key personnel in the White House counsel’s office responsible for such appointments are departing.  And the Senate has yet to confirm Christopher Schroeder, the nominee for the head of the Office of Legal Policy, which also bears a large part of the burden of vetting judicial nominees.

One suspects that among the many issues this Administration must juggle, the judiciary is not a top priority.  The Administration’s response to criticism about the pace of judicial appointments is that it is focusing on the confirmation rate, not the appointment rate.  But it is no secret the President places his higher hopes on politics and the power of democratic change, rather than the sort of legal liberalism of the Warren Court years.

Still, the President would be wise to recognize that courts and social movements have a symbiotic relationship. To state the obvious, judges can use their power of judicial review, and their role as statutory interpreters, to wreck havoc with the handiwork of politics.  Consider, for example, what the Supreme Court has done to the entire Guantanamo policy.

More important still, courts can ratify the work of political movements.  The New Deal’s shift to national control of the economy took lasting hold because judges changed their entire interpretive approach to accommodate it.  When judges buy into political change, such change becomes part of the very tissue of the law.  In this way, political accomplishments persist long after their proponents have departed their elective offices.

When a President’s agenda is primarily domestic, as is Barack Obama’s, judicial allies are essential.  Be it health care or the regulation of financial institutions, these regulatory changes ultimately will depend upon judges for their interpretation and implementation.  A hostile judiciary can tear a regulatory regime to pieces; a favorable one can enshrine it.

Simply put, it is not an either-or proposition:  judicial or political change.  The two work in tandem.  It’s both fine and appropriate to focus on the political.  That’s where one’s legacy is made.  But whether that legacy endures often depends, in the final analysis, on the courts.