Liberalism vs. the Law

50 years ago, in the space of less than a week, the US experienced not only Stonewall (and the birth of the modern gay rights movement) but a further event of historic significance, less remarked upon at the time, and practically forgotten today (at least in public debate). Yet this second event would intersect with the historical trajectory of Stonewall and the rise of social movement politics more broadly during the 1970s, with important implications for American democracy in the years to come. That other event was the swearing in of Warren Burger, a committed homophobe, as the new Chief Justice of the Supreme Court of the United States. 

Burger’s election was triply significant. First, Nixon’s nomination of this “law and order” conservative, to serve the new times of the post-Civil Rights backlash, brought an end to a long period in which the Supreme Court under former Chief Justice Earl Warren had been used by US liberals to bring about a more progressive legal (and social) order. As a rather sulky dissenting judgment by Justice Black to a late Warren-era ruling on free speech put it (which I cite in Empire of Democracy): “if the time has come when pupils . . . can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.” 

The Warren Court (1953-1969) shared more than just its name with current Democratic challenger, Elizabeth Warren. For much of the 1950s and 1960s, the Supreme Court, under Chief Justice Earl Warren, had overseen nothing short of a “progressive constitutional revolution.” Its politics rather resembled hers as well. As I write in my book: 

“This was the court that threw out McCarthyism, upheld civil rights, and protected freedom of speech. “For the first time,” writes legal historian Morton Horwitz, “democracy became the foundational value in American constitutional discourse.” The Supreme Court ensured this by forging a balance between judicial review and democratic process, between liberty and equality. The result was a true golden age of constitutional law: of Brown v. Board of Education on the equality side, and its creation of a new constitutional right to privacy on behalf of personal freedoms.”

The Warren Court took on majority racism, challenged the Court’s traditional role as defender of the privileges of property, and adhered to the creed that there could be “no effective political equality” if there was not also some greater measure of social and economic equality, as legal scholar Morton Horwitz puts it (in The Warren Court and the Pursuit of Justice). 

The Burger Court (1969-1986) would change this progressive culture of the Court dramatically, even if it refrained from openly repealing Warren-era legislation. The Warren Court was exemplary of what Mark Lilla calls “the Roosevelt Dispensation” (solidarity, opportunity, and public duty). The Burger Court was exemplary of “the Reagan Dispensation” (self-reliance, individualism, minimal government) that followed (see Lilla: The Once and Future Liberal). This was the court of Bakke v. Regents of the University of California, in which a white American claimed racial discrimination on account of the university’s quota system for peoples of colour. And while it did slap down Nixon’s efforts to claim executive privilege for his communications during Watergate, and while it did uphold Roe v. Wade, the Burger Court more broadly created an environment, as the pollster Mervyn Field put it, in which “it has become much more acceptable to be less generous.” It helped bring business into politics and put breaks on racial justice (see: Graetz and Greenhouse,The Burger Court and the Rise of the Judicial Right).

The second significance of the Burger Court is found in what was taking place around it, amidst the wider legal culture it helped to establish. Rigidity in the Supreme Court did not mean a rejection of the courts as instruments of social policy mobilisation in the 1970s, in other words. Indeed, conservatives having seen what liberals had been doing over previous years, and frustrated at the Burger Court’s initial institutional (and not just political) conservativism, soon began looking for ways to exploit the law elsewhere: just as the upwelling of new social movements, be it gay rights or women’s liberation, were already doing.  The Burger Court years thus came to be marked as well by a flowering of conservative ‘public interest’ firms, particularly in California, and of judicial activism more broadly. The courts became political but politics also became more judicialised. It was the beginning of an arc into what Sam Moyn calls the ‘juristocracy: an arc that would lead first to the highly influential “Law and Economics” courses of the late 1980s, educating judges of the future in laissez-faire economics, and to the more heavily partisan Supreme Court of our own era (this is actually a rather more complicated story, but I’ll leave it there for now). 

Finally, the third significance of the Burger court can be found still today in the legacy of its tacit support for homophobia and a liberalism of only partial liberal intent. Openly gay litigants had an especially hard time during the Burger Court years (this was the era of not just of Stonewall but of Harvey Milk as well). And here the Burger Court did undo some of the Warren Court’s progressivism, narrowing rulings such as Griswold which “potentially empowered gay people against homophobes,” in this case making it harder for gays to claim privacy rights relating to sexual intercourse (see: Eskridge, Gaylaw: Challenging the Apartheid of the Closet) undermining both their personal rights and their freedom of expression. As Eskridge writes: 

“By treating sex as dirty conduct rather than expression and “homosexuals” as presumptive sodomites rather than as citizens, the Burger Court did what it could to preserve the remnants of the closet.”

The legacy of this carried through into “Don’t ask, don’t tell” throughout the 1990s, and to the late-liberal era tendency to criminalise certain social practices and identities prior to shifting the burden of managing the resulting legal injustice of that onto the bearers of those identities themselves. If that is precisely what Putin was doing in his speech conflating migrants and crime at the G20 this weekend, defenders of the liberal faith would do well to recognise that this is also precisely what their own political discourse has been doing for years as well.