Court action and social change aren’t zero-sum — appeals to the court are inevitable and key to material change.

There’s long been a debate about the relationship between the Supreme Court and change within the legal academy. During the heady days of the Warren Court, law professors touted Brown v. Board of Education as the paradigm of the productive role that the court could play in effecting change. It was precisely because judges stood above politics, many thought, that they could serve as the nation’s conscience. The conventional wisdom has shifted dramatically. Scholars have questioned the efficacy, even the wisdom of the court’s intervention in Brown. They began to notice that much of the work of integration was done by organizers, not lawyers, and pushed through Congress, not the courts. The much-maligned Roe v. Wade eventually displaced Brown as the paradigm of judicial intervention, and worries about a political “backlash” to judicial decisions came to the fore. We’ve thus reached a point where the conventional wisdom against judicial intervention has become as powerful as the opinion once favoring it. The truth, of course, is somewhere in the middle. The court can’t effect social change top-down, but it can’t sit on the sidelines, either. That’s because social movements are almost always rights-oriented. Supporters cast their claims in rights-based terms, and movement leaders inevitably look to the courts for validation. The best way to understand the relationship between politics and law, then, is as interlocking gears moving us forward. Advocates push for change in the political and social sphere, which in turn creates space (and pressure) for the courts to effect change in the legal sphere. Rights are invoked by advocates before they have been recognized by judges. Think about the same-sex marriage movement. While much of the work was done on the democratic and social front, it rested on appeals to constitutional values, which all but inevitably morphed into appeals to the courts. Indeed, courts served as important sites of politicking for the same-sex marriage movement precisely because they are thought to be above politics. Perhaps, then, our paradigmatic case for thinking about the relationship between change and the court shouldn’t be Brown or Roe but Windsor, Obergefell’s precursor, which invalidated the federal refusal to recognize same-sex marriages. While Obergefell puts the court at the center of the debate, Windsor emphasized the crucial role that the people themselves played in creating the constitutional right to marry. As I’ve written elsewhere, Justice Kennedy specifically acknowledged in Windsor that advocates of same-sex marriage had changed what liberty and equality mean in this country. Throughout this debate, the courts haven’t been in the lead in effecting change, but they have been an integral part of the process of change. That complex reality doesn’t lead to easy claims about whether we need a Supreme Court or not, but it has the virtue of being true.