Why I’m Talking to You

Posted in Anticipation by Mike Sacks on January 15, 2010

NYU Professor Barry Friedman compares the Prop. 8 trial to the 1925 Scopes Monkey Trial, both more “morality plays” than legal cases.  Of cases of major political salience, Friedman writes:

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. […]

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? […]

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.

Friedman just came out with a book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, which comprehensively examines the Court’s responsiveness to public opinion up through the early part of this century.

Despite Friedman’s–and others‘–disappointment that the Prop. 8 case will not be televised, the people who camp out to see Perry v. Schwarzenegger at the district court and, ultimately, the Ninth Circuit Court of Appeals and the Supreme Court, are the ones whose reactions to the process are so strong as to compel them to participate through viewing the arguments in the flesh.  And here, Perry is not unique: the same lines form for the cases of great public interest that never had Perry‘s prospect of live broadcast.

For this reason, by waiting out in line, I seek to test the Roberts’ Court’s sensitivity to its surrounding political climate as represented by the sample of citizens who care enough about the case and/or the Court to get to One First Street before the sun rises.  It’s still too early to tell what I’ll find, but I’m sure I’ll find something.  Perhaps I’ll put my interviews on video.  That would be the next best thing, wouldn’t it?

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  1. […] Slate Readers! Posted in Endorsements by Mike Sacks on January 25, 2010 Huge thanks to Barry Friedman and Dahlia Lithwick for linking to F1@1F! One of the defining features of the John Roberts Court is […]

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