For many Democrats, the worst thing about the election result is the prospect of President Bush's appointing a new generation of conservative justices to the Supreme Court. But in the long run, a rightward shift in America's courts could be one of the best things to happen to liberalism in years.
Half a century after the triumph of Brown v. Board of Education, the landmark desegregation case, reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives. The recent battle over gay marriage, in courts and at the ballot box, demonstrates that liberals today are more adept at persuading like-minded judges than they are at persuading undecided voters. Over the past 40 years, while progressives were winning dozens of controversial court cases on issues ranging from abortion to school prayer, the Democratic Party failed nine times out of 10 to win a majority of the votes for president.
Over time, though, voters matter -- just as they mattered on Nov. 2, when liberalism took another beating -- and gay marriage was rejected in 11 out of 11 state elections.
Whatever you feel about the rights that have been gained through the courts, it is easy to see that dependence on judges has damaged the progressive movement and its causes. Liberals "became lazy at some point," says Marshall Wittmann, a senior fellow at the Hudson Institute who has worked for groups as diverse as the Christian Coalition and the Democratic Leadership Council. "By relying on the judiciary, their political muscles have atrophied."
Eric Hauser, a progressive political strategist, agrees: "When you get a chance to make progress in court you have to take it. But over the long term we have become too dependent. . . . We do quite well in our law schools and salons from here to Boston, and the same on the West Coast. But we have forgotten what it feels like to have a shot and a beer with a guy in Toledo."
At the same time, the liberal focus on courtrooms has strengthened the conservative movement. Nothing riles up social conservatives like a stirring denunciation of the so-called "activist" courts. From Richard Nixon to Ronald Reagan to the present day, GOP candidates have invited voters to send a message to those men and women in robes who order broad cultural change without the consent of the governed.
And it works: In that same 40-year period, Republicans have won five majority-vote presidential victories to the Democrats' paltry one.
President Bush once again went to that well in his campaign against Sen. John Kerry. Although neither man supported gay marriage, only Bush leveraged the issue into a broader populist appeal. The problem, Bush said in a debate against Kerry, was that once again, unelected jurists had mandated changes that could not be brought about through elected legislatures. "I'm deeply concerned that judges are making those decisions," Bush said, "and not the citizenry of the United States."
Millions of Americans, both liberals and libertarians, have been inspired by the rapid advance toward same-sex marriage rights. For them, this is another milestone on the path to equality. But it is also a vivid example of the dangers posed by courtroom addiction.
Civil rights lawyers of 50 years ago filed lawsuits as part of a well-planned strategy. Equal or even greater energy was put into political organizing and public persuasion. The individuals and groups bringing gay-marriage lawsuits did so, in many cases, without the backing of leading gay rights organizations. Little was done to cultivate support even among liberals. Essentially nothing was done to persuade moderates.
So when courts in Hawaii, Vermont and Massachusetts overturned the traditional understanding of "marriage" -- a word most people thought they already understood quite clearly -- the decisions seemed to drop from an empty sky. Then, Mayor Gavin Newsom of San Francisco went one step further. Without waiting for California courts to consider the issue, he simply decided on his own that the ban on same-sex marriage was unconstitutional and commenced issuing marriage licenses to lesbian and gay couples on national TV.
Gay conservative writer Andrew Sullivan, who has worked persuasively for a decade to build public support for the cause of "marriage equality," waded into this minefield when he wrote in a recent Web log entry that the judicial strategy might be counterproductive. "Court-imposed mandates rub people the wrong way, even those who support including gay couples within the family structure," he observed. "Extra-legal tactics like Gavin Newsom's particularly rankle."
Evan Wolfson, an architect of the legal campaign for same-sex marriage, says it should be possible to be effective both in court and at the polls. Maybe it is, theoretically. Certainly, the civil rights leaders of the 1950s and 1960s worked hard at both. But when voters suspect that you don't trust them to make the really tough decisions, they are less likely to support your candidates.
In earlier times, when the courts were a conservative force in American government, progressives knew how to take their case to the voters. They had no alternative. The reforms of a century ago -- trust-busting, workers' rights, women's suffrage and so on -- came via the ballot box. Conservative courts could have the same effect now.
True, political victories often take much longer than judicial ones. Three generations of women struggled for the vote, from the Seneca Falls Declaration of 1848 to the ratification of the 19th Amendment in 1920. It's hard to tell citizens who feel discriminated against today that they might have to wait a lifetime for equality.
But the long campaign for suffrage strengthened, rather than weakened, the cause of women. Organizations and coalitions built during that struggle continued to serve the march of progress long after the vote was won. Abraham Lincoln was right when he called this "a government of the people," not one of lawyers and courts.
American liberals run into trouble whenever they forget it.
David von Drehle is a staff writer with The Washington Post magazine.