June 16-17, 2018: The Courts and Progress in 2018

[On June 12^th, 1967, the Supreme Court ruled in Loving v. Virginia to strike down all remaining laws prohibiting interracial marriage. So this week I’ve AmericanStudied Loving and four other cases in which the Court helped advance social progress, leading up to this special weekend post on the role of courts and judges in our own society!]

On two directly opposed roles of 21^st century courts, and how to reconcile and move past them.

Over the last few years, specific courts, judges, and justice systems have seemingly ruled again and again in favor of some of the most frustrating aspects of our societal status quo. The most consistent and egregious examples have been the near-constant decisions (by grand juries, prosecutors, and others) not to indict (and often not even charge) police officers in the shootings and other deaths of unarmed African Americans. But there are other examples as well, such as the heinous judicial statements about and stunning lenient sentencing of Brock Turner, the white Stanford student (or “swimmer,” as news stories consistently referred to him) convicted of raping a young woman. What links these disparate trends is a pattern of the justice system siding with those already in power—the authorities, privileged white men—over those (often Americans of colors and/or women) they have oppressed, attacked, and far too often destroyed. In these moments, the justice system and the courts could be said not only to be reifying such power and privilege dynamics, but to be standing directly in the way of social progress, given that such progress depends at least in part on challenging and revising those dynamics in favor of greater fairness and equality.

Yet in the year and a half since Donald Trump’s inauguration, federal courts (especially federal appeals courts) have played a very different, and indeed in many ways directly opposed, societal and historical role. Time and again, it has been such courts and judges that have provided a vital—and often the only, or at least the only legal—bulwark against Trump’s most blatantly unconstitutional actions, with the numerous Muslim/travel bans and related immigration policies a particularly overt through-line but also including a variety of other extreme and illegal actions related to the environment, DACA, transgender troops in the military, and more. Given the just as blatantly regressive intent and purpose of these Trump proposals and policies, it would be entirely reasonable to describe these court rulings as progressive; progress isn’t simply about advancing causes, after all, but also countering and resisting the inevitable backlash that accompanies such advances and seeks to return the nation to a more inequitable state. While each and every one of these legal and political battles is far from over, I shudder to think where the nation might already have gone over the last 18 months without these crucial, progressive court rulings.

So how can we explain and attempt to reconcile these two opposed judicial roles? It would be easy, and perhaps not inaccurate (although more knowledgable legal scholars than me would have to weigh in), to describe the difference as one of local vs. federal courts, for lots of reasons: local courts being more connected to communities such as local law enforcement, federal courts dealing more directly with constitutional law and history, and so on. But I would also argue that these distinct decisions are connected to collective narratives of threats. Local justice systems seem unable to perceive figures like Turner and violent police officers as threats, not only to their fellow citizens and communities but also to progress and equality; while the federal courts seem clearly to understand the threat to the Constitution and American national community that Trump and his proposals represent. I’m not attempting to conflate these distinct forms of threats, but I would certainly argue that (for example) the epidemic of police shootings threatens our national community and future just as fully as do Trump’s policies. The more we recognize the role that all courts can play in opposing such threats and pushing toward progress instead, the more perhaps the frustrating decisions can be challenge and changed.

Next series starts Monday,

Ben

PS. What do you think? Other takes on the courts in 2018 or in our history?