Gene Sharp is a political scientist who wrote a celebrated handbook for carrying out a nonviolent struggle against a repressive regime, From Dictatorship to Democracy. Sharp’s work has been used by activists around the world, from the color revolutions in the former Eastern Bloc to the uprisings in the Arab Spring of 2011.
I’ve never seen anyone connect Sharp’s ideas to the role of the U.S. Supreme Court in American democracy. But it seems to me there is a connection: the importance of backlash.
Like Ghandi and Martin Luther King, Jr., before him, Sharp recognizes the importance of what he calls “political jiu-jitsu,” using nonviolent means to provoke an oppressive (and possibly violent) response from more powerful opponents — which may then cause the powerful opponents to lose support from those who object to the excessive response.
How this relates to the Supreme Court requires a little background, so please bear with me.
Constitutional law scholars in the United States have been obsessed, at least since Brown v. Board of Education, with what Alexander Bickel called the “counter-majoritarian difficulty.” The difficulty is this: why should a few unelected judges have the power to strike down, through judicial review of federal legislation, the decisions of elected officials? Why should their understanding of the Constitution trump the understandings of officials elected by popular vote? There are countless ways of answering this dilemma, from denying the premise by arguing that the Supreme Court rarely departs significantly from majority opinion, to arguing that the Supreme Court is needed to reinforce the representation of those who are marginalized in the political process in a non-self-correcting way, to claiming that the Supreme Court is simply enforcing the fixed meaning of the democratically adopted Constitution, not imposing its own preferences.
Attention to the counter-majoritarian difficulty has also led to increased awareness of the political dynamics in which the Supreme Court operates. Viewed in isolation, a Supreme Court decision can seem like a definitive, olympian pronouncement, derived from legal analysis, unaffected by public opinion, and settling the constitutionality of a policy or action once and for all.
In fact, this is not the way that constitutional history works. It is often social movements that lay the groundwork for changes in the Supreme Court’s interpretation of the Constitution, as we have recently seen with regard to gay marriage and the Affordable Care Act. And once a decision is made, the public and the rest of government do not necessarily fall in line. If the Supreme Court gets too far ahead of — or behind, or otherwise out of alignment with — the public, or with a passionately committed portion of the public, the Court’s decision may not be the last word. An unpopular Supreme Court decision can provoke popular backlash, which can then lead to a decision being undermined. This can happen through foot-dragging and other forms of executive nonenforcement, or even through the Court itself stepping back from its earlier position — as it arguably did in the case of the death penalty, and as it also may have done by upholding New Deal legislation after 1937.
Backlash to a provocative judicial decision can also have political effects far beyond the subject matter of the decision. The Massachusetts Supreme Court’s decision in 2003 that gay couples had a right to marry helped contribute to a series of proposed state constitutional amendments across that country that increased social conservative turnout in the 2004 presidential contest and helped elect George Bush to a second term. It is not inconceivable that John Kerry would have won Ohio, and become president, if an anti-gay-marriage amendment had not been on the ballot there.
Even more broadly, the conservative Christian backlash against Roe v. Wade has been a source of political energy for the Republican party for over four decades. Justice Ruth Bader Ginsburg is known for criticizing Roe for having invited this backlash through unnecessarily broad and divisive reasoning. Rather than allowing reproductive rights to evolve gradually through judicial-political dialogue, informed by changes in public opinion, Roe shut down the democratic debate and gave committed abortion opponents only one choice: help elect Presidents who will place anti-abortion Justices on the Supreme Court.
To the extent that Roe helped make possible the Reagan Era, even a supporter of reproductive rights might wonder whether Roe was the best route.
The most well-developed account of Supreme Court decisionmaking and backlash may be From Jim Crow to Civil Rights, a magisterial history of the Supreme Court and the struggle for racial equality by the legal scholar and historian Michael Klarman. (Is it a coincidence that the leading historian of judicial backlash happened to clerk for Justice Ginsburg, a vocal proponent of avoiding judicial backlash, when she was a judge on the D.C. Circuit?) Contrary to the court-centric understanding of Brown as an Olympian intervention that suddenly redeemed America from its racial past, Klarman shows how earlier social and political struggles for racial equality made Brown possible.
Klarman also tells a fascinating story about the consequences of Brown. This story is what the book is best known for, and it (finally) provides a bridge back to Gene Sharp and civil disobedience. In a nutshell, Klarman suggests that Brown, on its own, was largely ineffective in ensuring racial equality. School segregation continued throughout the South for decades. In fact, even today, American schools are apparently more racially separated than ever before.
But Brown made a difference — by contributing to a backlash among southern whites, which in turn finally led to effective national legislation against racial discrimination. Before Brown, many elected officials in the South were racial moderates. By provoking the outrage of southern whites, Brown helped end racial moderation as a viable political stance. (George Wallace, after losing a race in 1958 for governor of Alabama to a supporter of the Ku Klux Klan: “I was out-niggered by John Patterson. And I’ll tell you here and now, I will never be out-niggered again.”) The backlash to Brown helped extremist segregationist officials like Bull Connor into office. And when Connor used fire hoses and attack dogs on the youth protesters in Birmingham, he provoked another backlash — by much of the American public outside the South, against Jim Crow.
In Klarman’s words:
Brown created a massive backlash among southern whites, radicalized politics, and fomented violence. But that violence, especially when directed at peaceful protesters and broadcast on television, produced a counterbacklash. In 1954, most northerners agreed with Brown in the abstract, but their preferences were not strong enough to make them willing to face down the resistance of southern whites. It was southern violence against civil rights demonstrators that transformed national opinion on race. By the early 1960s, northerners were no longer prepared to tolerate the brutal beatings of peaceful black demonstrators, and they responded to such scenes by demanding civil rights legislation that attacked Jim Crow at its core.
From the Civil War through the civil rights movement, it has been easier to mobilize northern white opinion in support of the rights of southern blacks in response to brutality, violence, and lynching. When southern whites quietly segregated or disfranchised blacks, northern whites often remained indifferent. … [The] counterbacklash dynamic culminated at Birmingham and Selma, as northerners demanded transformative civil rights legislation after watching televised scenes of law enforcement officers brutalizing peaceful black demonstrators. (465-66)
In other words, the Supreme Court in Brown acted like one of Gene Sharp’s nonviolent protesters — although presumably unintentionally. Just as a nonviolent protester may carry out a peaceful action that is designed to provoke an oppressive, possibly even violent, response (the backlash) that will cast the opposition in an unflattering light and attract public support to the protester’s side (the counterbacklash), so the Supreme Court in Brown delivered a symbolic, not-immediately-enforceable judgment against racial segregation that provoked an oppressive, violent response from southern whites (the backlash), and this racial violence cast Jim Crow in an unacceptable light and attracted northern support to the Supreme Court’s side (the counterbacklash).
On the one hand, it seems counterintuitive to compare the Supreme Court to someone engaged in nonviolent protest. Civil disobedience is a tool of outsiders, the ostensibly powerless, while the Supreme Court sits at the top of the judicial branch, routinely striking down acts of Congress and telling the President what he may not or must do. In capital cases, the Justices, at least in theory, hold the power of life or death over petitioners; and more generally, as Robert Cover wrote, when judges “have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”
On the other hand, there is something fitting in the analogy. The Supreme Court has no army to enforce its judgments, no extensive bureaucracy to carry out its commands. Of the major institutions of government, it is the most lacking in certain obvious forms of power. Its power derives in some sense from its perceived legitimacy, and this legitimacy ultimately derives in part from the reasons it offers for its decisions — from rhetorical appeals, just like the appeals that the most effective protesters offer.
Another contrast: Civil disobedience is associated with defiance of the law, or at least the letter of the law, while the Supreme Court is supposed to be the great upholder of the law and its rule. But from another perspective, how different (at least in some cases) is the Supreme Court’s restraint of government based on the discovery of a new right in the Constitution from a protester claiming that some government action is illegitimate and must not be allowed to stand?
It’s clear that the Supreme Court often engages in various forms of “judicial politics.” It sometimes puts off decisions, or reaches narrower or broader decisions, based on prudential (as opposed to legal) grounds, such as the expectation that a more favorable political climate may soon arrive (as in the case of gay marriage). It’s also clear that the Supreme Court is aware of the issue of backlash, and sometimes attempts to avoid it, as Justice Ginsburg’s comments suggest.
I wonder, however, whether any of the Justices has ever played a longer game, like one of Sharp’s protesters. I wonder whether a Justice has ever deliberately attempted to orchestrate the kind of backlash and counterbacklash that followed Brown.