On this week’s episode of “Chicago Stories” podcast, Mayor Emanuel sat down with Professor Gerald Rosenberg of the University of Chicago to talk about the true impact of landmark cases, the court’s long history of politicization, the big decisions he’s watching, and much more.
Professor’s Rosenberg’s interest in the Supreme Court stems from growing up in the political and social ferment of 1960s, inspiring him to not only help make social change, but to understand it as well.
“I wanted to know what was the best strategy to bring about social change,” Professor Rosenberg said, “and more narrowly, whether litigation was an effective strategy.”
As he told Mayor Emanuel, what he found was — at best — complicated.
“Courts can do many things very well — they can protect individual rights, they can put unsafe products off the market,” Professor Rosenberg said. “What they’re less good at doing is bringing about nationwide change.”
His analysis flies in the face of the conventional wisdom which holds landmark cases like Brown vs. the Board of Education or Roe vs. Wade as direct causes for the societal changes of ending race-based school segregation and establishing reproductive rights
Instead, what Professor Rosenberg found was that kind of actual, lasting social change came from public organizing and the ballot box.
But that’s not to say the Supreme Court can’t stifle social change. In fact, just the opposite is true. “It’s very clear in the short-run courts can inhibit social change,” Professor Rosenberg.
It’s the court’s power to—as Professor Rosenberg said—“draw distinctions and draw lines” that makes him so concerned about cases in our current era seeking to undermine the progress made across voting rights, abortion rights, affirmative action, and other issues.
The hope—for either side—is the court’s historic willingness to bend in the face of public opinion. It’s also what makes elections and public activism and advocacy so important.
“In the end public opinion is more important than the court, and that’s because justices do not choose themselves, they are chosen by elected officials, and elected officials to some extent reflect public opinion,” Professor Rosenberg said. “The question becomes can a court sustain a set of positions in opposition to public opinion and political will. In the short-run, yes. In the long-run, no.”
Be sure to listen to the entire of the episode as Professor Rosenberg expands on the court’s relationship with public opinion, the hidden success of FDR’s court-packing effort, and the downside of Ruth Bader Ginsberg’s recent public notoriety.