So says Edward Lazarus in this Washington Post column.
Much of the opinion piece is crying in its beer about how much liberals (he says progressives, but we know that's just their term du jour) "lost" in the last SCOTUS term.
But towards the end, Lazarus said something I've said for a long time about a lot of issues: if liberals want Americans to accept certain ideas, they need to persuade them, not beat them about the head.
Prior to Roe v. Wade, America was becoming more accepting (albeit slowly) of the idea of legal abortion. But that court decision gave birth to the pro-life movement which saw its first outright victory in a 40-year war this court term. The fact is that states might not have completely embraced legalized abortion but for Roe--and, indeed, some states still would have banned abortion--but we know that Roe created a situation that galvanized moral and religious conservatives as well as those who disliked judicial activism.
As recently as last fall, I said here that gay marriage advocates should make it their goal to persuade the American electorate of the reasonableness of their position, rather than ramming down the throats of their opponents through court decisions.
I've seen arguments made comparing gay marriage to the civil rights movement. But the civil rights of all Americans wasn't guaranteed by a court decision. Equal rights were guaranteed through legislative action including the 13th, 14th, and 15th Amendments to the U.S. Constitution, the Civil Rights Act of 1964 (possibly the most important piece of legislation ever passed), and the Voting Rights Act. In other words, in order to gain equality, black people had to convince enough non-black people that it was a good idea. It was only then that such legislation was passed and those legal rights secured.
Lazarus says something similar: that liberals need to work with conservatives on issues they both agree on.
progressives need to consider whether they can make common cause with some conservatives. Such a potential agenda does exist. Call it the "accountability agenda," focused on greater transparency in government and on enforcing the checks and balances at the Constitution's structural core.
Conservatives of a more libertarian stripe are as concerned as progressives about overreaching claims of unreviewable executive authority, as the decisions rebuffing the Bush administration's policies on enemy combatants have already shown. Both progressive and conservative judicial philosophies can embrace a judicial role in policing the limits of governmental power and in making our democratic processes more robust.
It may be a painful growing season for liberals, but they will have to discover ways to persuade Americans to embrace their causes, rather than using the club of the courts to force Americans in directions they aren't willing to go.
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