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Posted Nov. 22, 2010

Controversial Court Decisions Sometimes Create Backlash, Klarman Says

Klarman

Landmark court decisions on contentious social issues such as abortion and the death penalty have created public backlash against the causes they seemed to advance, Harvard Law School Professor Michael Klarman said last week.

Klarman, the Kirkland & Ellis Professor of Law at Harvard and a former professor at Virginia, presented “The Supreme Court, Social Change, and Political Backlash,” on Nov. 16 in Caplin Pavilion. The Center for the Study of Race and Law sponsored the event.

Klarman, who is researching backlash for an upcoming book, said major court decisions on school integration, police procedure, the death penalty, abortion and gay marriage elicited public responses that both set back those causes and created a political movement against them.

Brown v. Board of Education, in the short term, retarded racial progress in the South. It created an environment that was conducive to political extremism; it created an environment that was conducive to violence,” Klarman said.

Prior to Brown, there had been some movement in even the most segregated corners of the South toward civil rights goals such as the integration of police forces and athletic teams, he said. Such progress ground to a halt after the decision, and some Southern politicians realized that taking extreme stances against integration was a politically sound move, he said.

Klarman also pointed to a landmark death penalty case as an example of when a Supreme Court decision galvanized opposition to an issue.

“Furman v. Georgia in 1972, by threatening to eliminate the death penalty, almost certainly increased support for capital punishment, as 35 states within the next four years passed new death penalty laws in an almost desperate effort to get the Supreme Court to reconsider its views,” he said.

Another example he cited, Goodridge v. Department of Public Health, was a 2004 Massachusetts Supreme Judicial Court decision granting gay couples the right to marry. Within a few years of that decision, 30 states had adopted constitutional bans on same-sex marriage, Klarman said.

“It pretty clearly cost two Democratic senate candidates their jobs in 2004, and there is at least a respectable argument – this is not something I would claim with utter confidence – but it is at least plausible that President Bush was reelected in 2004 because of the Massachusetts Supreme Court decision,” Klarman said. “That is, President Bush doesn’t win the 2004 election without winning Ohio; he wins Ohio by two percentage points and there is a same-sex marriage ban on the ballot that passes by 24 percentage points.”

Klarman said he wasn’t mounting a criticism of the decisions, but rather observing the factors that made them unpalatable to parts of the population. Backlash seems to arise when judges rule in ways that reject widely accepted compromise positions on controversial issues, he said.

“On most political issues, and certainly on issues like same-sex marriage, abortion and the death penalty, there is a spectrum of positions that one might take, and the court decisions have taken positions far toward one end of the spectrum,” Klarman said. “It’s the failure to arrive at a compromise position that would have appealed to the median voter that I think is most responsible for generating the phenomenon of backlash.”

In the case of the 2004 ruling on gay marriage, it was clear at the time that civil unions was a compromise position acceptable to a broad majority.

“The Massachusetts  court said ‘No, civil unions are not good enough,’ at a time that opinion polls showed that 60 percent of the country was fine with civil unions, but two-thirds of the country was opposed to same-sex marriage,” Klarman said.

In the case of Roe v. Wade, opinion polls — both then and now — show 60 percent or more support a woman having a right, with the consultation of her doctor, to an abortion during the first trimester of a pregnancy. That number falls to 28 percent during the second trimester, Klarman said.

Roe v. Wade pretty much protects a right to abortion on demand through the point of viability, which is the end of the second trimester,” Klarman said.

Though the examples he cited were of seemingly liberal court decisions generating conservative backlash, Klarman said conservative decisions could just as easily produce a liberal backlash given the right circumstances. But there’s no question that such decisions have at times put progressive politicians in the position of defending positions that are unpopular with the majority of the electorate, he said.

“I think people might have to come to realize that getting the most you want out of court might in the long term not advance your political agenda,” he said.