Barack Obama, Hillary Clinton, and the Debate Over How Much Supreme Court Decisions Truly Matter

By EDWARD LAZARUS

Thursday, Jan. 31, 2008

Over the last 15 years, a considerable academic literature has developed that downplays the importance of landmark Supreme Court decisions such as Brown v. Board of Education or Roe v. Wade in reshaping American society.

Beginning with Gerald Rosenberg's path-breaking The Hollow Hope, books putting forward this thesis have observed, for example, that even to this day, Brown has not succeeded in achieving desegregation of our public schools: While government-instigated segregation is now beyond the pale, due to "white flight" segregated housing patterns, and other factors beyond the control of the courts, a stunning percentage of our public schools, especially in the inner cities, lack meaningful racial diversity.

Nor, in the view of these scholars, did the Supreme Court, through Brown or other decisions, make all that much progress in the broader field of civil rights, until Congress radically changed the legal landscape with the great civil rights acts of the mid-1960s.

Roe v. Wade suffers a similarly dismissive interpretation. It is seen as creating a political backlash that, in the view of some scholars, may well have set back the cause of abortion rights and even, perhaps, the cause of women's rights. Without Roe,the commentators claim, women would have made the same or even greater social gains through the political processes.

It is not my intent here to survey the strengths and weaknesses of this school of thought. But it is difficult to look at the fight for the Democratic nomination and not conclude that those who would pooh-pooh the importance of Supreme Court decisions in American life somehow miss the inspirational qualities of these decisions, and how these inspirational qualities ultimately pay off in ways that are difficult to measure.

Until John Edwards dropped out of the race yesterday, all three major Democratic candidates were lawyers, and the career of each either reflected or was closely intertwined with the rights revolution ushered in by the Warren Court of the 1960s. Now, with only Senators Obama and Clinton remaining in the race, I'll take a closer look at how each of the two may have been affected by seminal Supreme Court decisions.

Barack Obama and the Legacy of Brown v. Board of Education

To begin, Sen. Barack Obama is a disciple of Harvard Law Professor Laurence Tribe and a constitutional scholar in his own right. Obama's intellectual roots, as well as his early career, are deeply grounded in the idea that progress can be achieved through law, including through the judicial process.

As a candidate, Obama has explicitly linked the arc of his own life to the vision of racial equality that the Court's decision in Brown boldly captured. As Obama has put it, Brown was a "triumph for the soul of the nation" - a triumph that inspired his own ambitions and helped make those ambitions realistic, in a way this country might never have imagined only a few years ago.

In this sense, Obama stands as a bridge between past and future. As the child of a mixed-race marriage, his very genetic makeup is a tribute to the legal decisions that struck down the legal walls separating the races. With one arm, he reaches back to honor those, like the plaintiffs who brought the cases that led to Brown, who fought the fights that enabled the phenomenon of an Obama to exist. And with the other arm, he reaches forward, towards a vision of a post-racial America, where the phenomenon of an Obama will not be so much remarkable, as simply the norm.

Hillary Clinton: Embodying the New Women's Rights Constitutional and Societal Regime

A related story can be told about Sen. Hillary Clinton. She went to Yale Law School from 1970 to 1973. Thus, she came of age as a lawyer just as the Supreme Court was broadening its interpretation of the Constitution's Equal Protection Clause to include gender equality. Indeed, Senator Clinton graduated from law school only a few months after the Court handed down Roe v. Wade.

Taken as a whole, these decisions announced a new constitutional and social regime, under which women were entitled to take their equal place in every walk of American life. With the possible exceptions of Sandra Day O'Connor and Ruth Bader Ginsburg (who argued many of the women's equality cases), no one has more fully embodied the aspirations of this new regime than Clinton - who quickly became the first woman partner in Arkansas's leading law firm, and is now a trailblazing politician. In another time, with another Supreme Court, this career would never have been possible.

The Three Prior Top Democratic Contenders Can All Be Seen as Sharing in the Supreme Court's Legacy

In comparison, perhaps John Edwards's life trajectory cannot be so directly ascribed to a national dynamic reshaped by the Warren Court. But as Edwards has said countless times, he is a product of the New South - the more progressive South that took hold amid ugly resistance to the civil rights movement, persevered, and then flourished. And, of course, that New South was deeply influenced by Brown and its progeny.

In his own statements as a candidate, Edwards had spoken movingly of the Court's role in achieving the transformation to which he is heir. And, more generally, none of the candidates believed more fervently than Edwards in the possibility of courts to do justice. That was, of course, the premise of his career as a trial lawyer - the career from which his political aspirations took flight.

To be sure, the emergence of Obama, Clinton, and, until recently, Edwards as the leading Democratic contenders is not directly attributable to the Warren Court and the constitutional revolution it spearheaded. So many other factors also were powerful forces in the rise of each. But is it really possible to imagine that an African-American, a woman, and a progressive trial lawyer from the South could ever have become contenders at all - much less the leading contenders - without the achievements of that Court?

I doubt it.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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