Sunday, July 1, 2007

Does the Court Matter?

Jeffrey Rosen takes up the question "Can a Law Change a Society?" in the New York Times today, in a discussion of the Seattle school case. He relies principally on Michael Klarman, author of From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, and he makes it seem as if the answer is reasonably clear, and that the categories (law and society) are separate rather than intersecting and overlapping. The article ends with the suggestion that courts matter very little:
“Brown pushed the country in a direction it was already going, and in the same sense, the large forces today are going to continue to operate regardless of what the Supreme Court just decided,” Professor Klarman said. “We’re headed toward an ambiguous place where we’re committed both to colorblindness and to diversity in public life. We might have a black president, but we’ll still have a society with very segregated neighborhoods and public schools. I don’t think the court decision will make much difference either way.”

The literature on this is, of course, more complex. Critiques of Klarman are here (Paul Finkelman in the Harvard Law Review) and here (my essay in the Chicago Law Review). And a more nuanced take on the way courts affect society can be found in the work of Michael McCann, e.g. his book Rights at Work.

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