Meaganoff raises an interesting point in her previous post about marriage. To put it succinctly, should the courts overturn laws that are unjust even if the majority of the voters support such a law?
This question has bothered me for some time. As a good liberal (recent praise for Bush notwithstanding) my knee-jerk (pun intended) reaction is “YES! The courts have a sacred duty to protect all and who cares if the unwashed masses are racist, sexist, stupid, whatever.”
As I’ve thought about this more, I’ve had trouble with the question. To wit; if people (racist, sexist, stupid or otherwise) feel the court is usurping it’s position, they cease to respect the court and vote with their feet. Then whatever good intentions the court had are undone by the aforementioned people, racist, sexist, stupid or otherwise.
An example; the desegregation battle. The 1954 case Brown v. Board of Education of Topekaended what is known as de jure segregation. I.E. segregation that is mandated by law. Nowadays this case is praised as an important step forward in race relations in this country. This is an opinion that I share.
What do you know? It’s another area of agreement between me and George Bush. Pigs are flying!
Where problems started to happen is in the implementation of the Brown ruling. Brown merely struck down segregation as a matter of law. Many districts simply took the offending rules off the books and went along with segregated schools. As the cases started to pile up, courts started mandating integration. In 1968, the Supreme Court weighed in and ruled that freedom of choice plans were no longer acceptable for integration. (See Green v. County School Board)
This brings us to forced busing, which shows up in Swann v. Charlotte-Mecklenburg Board of Education. In this case, Charlotte school district proposed a system of busing students to integrate the schools. The Supreme Court said, “Yup, OK, this plan meets our requirements for integration.”
And from there forced busing was the integration method of choice. And forced busing made white flight way more popular. Were these people racists? Sure. But ultimately, all of this judicial activism did nothing. In many urban areas schools are as segregated as ever. White people pulled their kids out of public schools, or moved further away from the city. Nowadays, (in the ‘add insult to injury’ file) these same white people are pushing for the government to pick up the tab for these “schools of choice”.
My point in all of this, while intentions on the part of the court were good, basically it was sound and fury signifying nothing. People still held their racist beliefs and merely sidestepped what they saw as the court usurping their rights.
Judicial fiat can not overcome people’s attitudes and beliefs in one fell swoop. It takes time. I am concerned that an over-reliance on the courts will lead to a hardening of negative attitudes and stereotypes.
