A court that nudges more than it leads

With all the hullabaloo about Tuesday’s nomination of federal appeals court Judge John G. Roberts Jr., it’s easy to start imagining that the country’s entire future depends on the makeup of the Supreme Court. That would be a mistake. Although the Supreme Court is undoubtedly an important American institution, it matters much less -- and much differently -- than most people think.

In theory, the court is a “counter-majoritarian” institution. That’s a fancy way of saying that unlike the president and members of Congress, who must be elected by political majorities, Supreme Court justices are appointed and, once in place, they not only serve for life but have the power to strike down legislation passed by Congress and signed by the president. On paper, that doesn’t look very democratic: Why should unelected judges be able to overrule the will of political majorities?

Over the years, political scientists and legal scholars have struggled to defend the court’s seemingly undemocratic aspects. The most common defense highlights the court’s role as guardian of our Constitution: There must be some institution empowered to take the long view, enforcing constitutional provisions even when temporary majorities want to scrap them. A related defense holds that the court’s job is to protect minorities from being trampled on by numerical majorities: For instance, giving the court the power to strike down unconstitutional legislation can help prevent whites from enacting discriminatory legislation intended to disenfranchise blacks.

Both these arguments take for granted that the court is willing to take strong, powerful, principled stands against both legislators and, in some cases, against the majority of voters. Recently, however, many scholars have questioned that assumption.

In his 1991 book “The Hollow Hope: Can Courts Bring about Social Change?” political scientist Gerald Rosenberg presented powerful evidence that even landmark cases such as Brown vs. Board of Education and Roe vs. Wade either had little practical effect or simply reflected broader societal changes that were already underway.

Although Rosenberg was at first roundly attacked by legal scholars (who have something of a professional stake in believing that Supreme Court decisions matter), today many constitutional experts accept that Rosenberg was correct: Courts rarely mount serious challenges to the preferences of political majorities. As Stanford Law Dean Larry Kramer put it, “There is now a general consensus among social scientists that courts have not been a strong or consistent counter-majoritarian force in American politics.”

In other words, Supreme Court decisions are more of a mirror than a catalyst, reflecting public opinion far more than they shift it. This shouldn’t surprise us; Supreme Court justices, like the rest of us, are influenced by shifting social mores. And they know that the court’s institutional credibility -- and ability to get its decisions enforced -- depends on not getting too far ahead of the curve.

Take Brown vs. Board of Education. As University of Virginia law professor Michael Klarman has argued, the court’s decision that racial segregation was unconstitutional came only after national elites had already begun to frown on racially discriminatory policies. Even in the South, the winds of change were beginning to blow prior to Brown. The court’s ultimate decision merely nudged the nation a bit further in the direction it was already going.

As Klarman notes, Brown had an effect -- it’s just that the effect was not what most people assume. In fact, Klarman asserts, Brown’s primary effect was not to inspire the civil rights movement, which would have begun anyway, but to provoke an angry backlash in parts of the Deep South against desegregation. In the short run, this slowed the pace of reform; in the longer run, however, televised broadcasts of brutal Southern repression during civil rights protests “transformed racial opinion in the North, leading to landmark civil rights legislation.”

The moral of the story? As Yale Law School’s Jack Balkin says, the Supreme Court is bad at tackling but good at piling on. With or without John Roberts, don’t expect the court to deviate dramatically from what most Americans want.

This should be depressing to conservatives hoping for radical change from the right and reassuring to liberals fearing the same. But both sides should keep in mind Rosenberg’s ultimate conclusion: The myth of the all-powerful Supreme Court can be dangerous if it diverts the attention of activists from the real engine of social change, which is, as always, the people.

So, whether you want to ban abortion or keep it legal, whether you want greater federal power or less federal power, don’t bother so much about the court. The people you really need to convince aren’t wearing black robes up in Washington. They’re all around you.