Sally Kohn is a writer and a CNN political commentator.
For a brief moment, it all made sense. With most of Congress suffering from what could only be called dysfunction and most of the presidential campaign racked with what might optimistically be called pre-apocalyptic derangement, at least we had the courts. In his new book, “Engines of Liberty,” Georgetown University law professor David Cole presents the Supreme Court — and the judicial branch of our government in general — as the port of last resort for those seeking justice change in a political climate that is otherwise nothing but storms of partisan tumult.
At least, that was how Cole’s book felt. Then Justice Antonin Scalia died.
If you weren’t already sentimental about the hallowed importance of the Supreme Court before Scalia’s passing, Cole’s book will do the trick. “The Constitution is designed to insulate certain principles and norms from the winds of political change,” Cole writes, citing a Supreme Court ruling that says “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” Today, one can’t help but wonder if “vicissitudes” is a fancy word for Donald Trump.
Which isn’t to say the Supreme Court has always guarded against such vicissitudes correctly. Sprinkled throughout “Engines of Liberty” are examples of Supreme Court rulings that today’s court, and most of our nation, ought to recall with shame — whether the Korematsu decision, which authorized the internment of Japanese Americans during World War II; or Bowers v. Hardwick, which upheld laws criminalizing sodomy; or Plessy v. Ferguson, which deemed racial segregation laws to be constitutional. In fact, the most stunning revelation of Cole’s book is that such gravely unjust decisions were not necessarily reversed by the courts themselves or even by other branches of government seeking to right the wrongs. Instead, Cole shows how justice in the courts has often come through citizen advocacy groups pursuing and pushing for it.
Cole grounds his case in three stories of community-based advocates who pushed for, and won, constitutional change. Evan Wolfson is the lawyer largely credited with making marriage a central goal of the gay, lesbian, bisexual and transgender movement and doggedly advancing marriage equality through cultural strategy and litigation. When Wolfson began his work, there was no constitutional protection for gay people whatsoever, let alone for the right of gay couples to marry. In fact, Cole notes that when Wolfson was in law school and wrote a paper making the legal case for same-sex marriage, the criminalization of sodomy was still considered constitutional by the Supreme Court. Not only was the legalization of same-sex marriage a long shot, to say the least, but in the 1980s and 1990s, as Wolfson began his legal advocacy career, most LGBT movement leaders didn’t think marriage should be a priority. But Wolfson had a clear vision for how culture and jurisprudence could change dramatically, and he persisted.
For most of our history, Supreme Court doctrine did not recognize that the Second Amendment protects an individual’s right to bear arms. In fact, as Cole notes, “before 2008, the Supreme Court had never invalidated any legislation under the Second Amendment.” If that seems surprising, bear in mind that until 1968, the National Rifle Association itself “did not systematically oppose gun regulation.” But that year, after a string of assassinations including those of John F. Kennedy and Martin Luther King Jr., Congress passed the Gun Control Act, and NRA members revolted against the legislation and what they saw as the too-conciliatory leadership of their organization.
Among those protesting was Marion Hammer, a gun enthusiast in Florida who had a vision for proactively reshaping gun rights. Working in Florida and ultimately making her branch of the NRA the most potent political force in the state, Hammer successfully pushed for concealed-carry and stand-your-ground statutes, and laws that preempted municipalities from adopting their own gun regulations. Growing up in an era when gun rights laws, let alone constitutional protections, were almost unheard-of, Hammer helped make Florida the Gunshine State — and her persistent vision turned Florida into a key reference point in Second Amendment cases eventually won at the Supreme Court.
The third main character in Cole’s book is Michael Ratner, a civil rights lawyer who has most recently focused his attention on the due process rights of detainees held by the U.S. government at Guantanamo Bay. Ratner also faced an uphill battle. As Cole notes, “The Supreme Court had ruled after World War II that enemy prisoners of war could not seek habeas corpus review in U.S. courts.” In its ruling in Johnson v. Einstranger, the court said, “Nothing in the text of the Constitution extends such a right.” Ratner himself thought the chances of the court reversing its stance in the wake of the 9/11 terrorist attacks were “completely hopeless.” But after he used a creative combination of public-awareness strategies, and worked with lawyers in Kuwait, Australia and Britain to file suits for their citizens who were held in Gitmo, the Supreme Court ultimately agreed to review a string of cases. In 2004, the court ruled that habeas corpus law afforded all detainees the right to have their detentions reviewed in court. And two years later, the court said that the Geneva Conventions applied to al-Qaeda detainees. Against the odds, Ratner persisted and won.
Taken together, the narratives weave a compelling portrait of advocacy-driven constitutional change — yet the narratives themselves aren’t equally artful. Hammer’s story seems a bit forced, as though the book’s liberal-leaning author, hoping to strike a balance, tried to make the largely corporate gun lobby fit into his grass-roots-change frame. And while Cole is clearly most attached to Ratner’s tale (the book is, in fact, dedicated to him), the story as a whole is more meandering and multifaceted. Wolfson’s tale provides the tightest illustration of Cole’s thesis, perhaps because Wolfson was for so long a one-man army for marriage equality, who wrote a law school paper on the topic that almost everyone found laughable and who then went on to prevail in the highest court in the land. And Cole overemphasizes a small set of litigators while playing down the universe of other activists and leaders who helped make change possible inside and outside the courts. Still, despite this unevenness, the collection certainly stands apart from dense and dry legal texts in being readable, accessible and at times even gripping.
In fact, Cole called his book “Engines of Liberty” but could have just as easily chosen a more super-hero-y title — like “Guardians of Liberty” — for a story in which each of his protagonists, with a heart of gold and nerves of steel, fights for truth, justice and the American way. For instance, judges and legal scholars refer to the “living Constitution” to mean that constitutional law is always evolving, but, Cole writes, “the Constitution is ‘living’ in another sense, too.”
“The Constitution lives in each of us — and in the groups we create to safeguard and advance what we view as important constitutional values. These groups are living embodiments of our constitutional commitments. They carry the torch of constitutionalism, and it is their work that ultimately shapes the directions in which the living Constitution — in the first sense — grows.”
It’s not hard to picture Ratner in some Iron Man-esque hardshell costume, Wolfson wearing a cape and Hammer with, well, a big gun storming the Supreme Court to advance their visions of justice and change. As the forces of partisanship encircle Congress and loom like storm clouds over the presidential campaign, our heroes rise powerfully, optimistically, like a bolt of light. And for the legions of others like them, seeking to make the world better but frustrated by legislative and executive loggerheads, our heroes shine a path forward — that the judicial branch, at least, remains open for business and open to change. Or it was, anyway. Until Scalia died and Republicans decided not to even consider any replacement President Obama would nominate, thus finally casting the third branch of our government into chaos.
In other words, Cole has written a deeply hopeful book about an institution in which our hope may be dwindling.
By David Cole
Basic. 307 pp. $27.99