Many Americans think of the courts as a mechanism to change the law when legislatures won’t. In the courtroom, an aggrieved minority can find justice.
Courts may uphold the rights of a minority, maybe not. Not only is the argument that the judiciary exists to protect us from the tyranny of the majority suspect, but reversing state and local laws through the courts might also be counterproductive for the interests of the minority in the long-run.
In 2015, the year of the Obgerfell decision, 55 percent of U.S adults favored same-sex marriage. The Supreme Court’s ruling caught up with public opinion, which had changed amazingly quickly in a decade, largely due to the work of activists working in civil society and popular culture.
In the 1973 decision Roe v. Wade, seven people made abortion legal for the entire U.S. overnight.
Two different issues, yes, but compare the progress made in the shift of societal attitudes on gay rights to abortion where as of last year, 40 percent of Americans believe it “should be illegal in all or most cases,” which is up slightly from where it was in 1995.
The American civil rights movement also had its court victories, but it combined strategic legal battles with two decades of robust democratic action—public protests, boycotts, sit-ins, persuasive public writing—which culminated in a series of laws passed by Congress.
Public attitudes on racial issues are certainly not where many activists today would like them to be, but it’s disturbing to consider where they might be if the question of legal racial discrimination in the U.S. had been decided in the courts alone.