Controversy: in keeping with the policy of the Humanist to accommodate the diverse cultural, social, political, and philosophical viewpoints of its readers, this occasional feature allows for the expression of alternative, dissenting, or opposing views on issues of importance to Humanists.

Beyond the Alito Battle: Creating Democratic Change

AS CONSERVATIVES PREPARE to seize control of the Supreme Court with the nomination of Samuel Alito, liberals realize that the reproductive freedoms guaranteed by Roe v. Wade are endangered. But what can the left do?

Some progressives say that the primary battleground will continue to be the courts where, eventually, if the left strategizes well, the loss of fundamental freedoms can be minimized. These optimists speculate that, with the possible election of a Democratic president in a few years, perhaps liberals can turn the tide.

But if one carefully considers today's social and political landscape, one realizes that the judiciary is but a small part of the problem. In fact, the crisis of failed progressivism in the United States has little to do with the Supreme Court.

As both an attorney and a Humanist, I can appreciate the importance of civil rights jurisprudence. Despite conservative criticism of "legislating from the bench," many of the landmark civil rights cases in American legal history have led society in the direction of social progress. If not for "judicial legislating" in the Brown v. Board of Education case of 1954, for example, racial segregation in public schools would still be legal. It's interesting that not many conservatives point to Brown when they criticize judicial activism.

Nevertheless, Humanists and progressives should recognize that judicial activism must be seen as a necessary evil. That is, we generally need judicial activism only when the democratic process fails to adequately protect fundamental rights. Brown was thus necessary because the democratic process had failed to provide basic equal protection for minorities. Therefore the courts intervened to declare that, in light of the failures of the legislative and executive branches to desegregate public schools, judicial power would do so. Whenever the judicial branch acts to protect a minority group, one can presume that the intervention was necessary because the democratic process had neglected that group's rights.

Thus we shouldn't be surprised when judicial activism generates public backlash. Even a case such as Brown, which today is seen as indisputably wise and just, was controversial when it was first decided. Indeed, if we look at other cases, such as Roe v. Wade, the subsequent public backlash sometimes never dissipates.

Roe therefore becomes an example of why Humanists and progressives should be cautious when utilizing the courts to trump the democratic process. Though virtually all Humanists and progressives would agree that a woman should have a fundamental right to make her own reproductive choices, one must concede that Roe, by declaring that right judicially (and therefore bypassing the democratic process), led to several undesirable and unforeseen consequences.

First and foremost, the Roe decision mobilized the religious right. Not only did the decision probably cause the ultimate defeat of the Equal Rights Amendment, it also directly led to the creation of the Moral Majority, politicizing social conservatives who had heretofore generally avoided the political arena. Subsequently, the Christian Coalition and other religiously fueled political groups mushroomed across America, creating a social and political landscape today that would have been unimaginable back when Roe was decided in 1973.

Ironically, at the time Roe was decided the general trend in America was toward the liberalization of abortion laws through the democratic process. The issue of women's rights was on the public agenda, sexuality was more openly discussed than ever before, and society was heading in the direction of feminism and sexual liberation. It was in this democratic climate that Roe, through undemocratic judicial declaration, dictated that the choice to have an abortion was a fundamental constitutional right.

Of course, the basic principle of Roe is sound and admirable--the right to privacy should be seen as including a woman's right to make her own reproductive choices. But surely most progressives and Humanists would agree that it would have been more desirable to attain the public policy underlying Roe via ordinary democratic means--through a constitutional amendment protecting a woman's right to choose, or through federal legislation doing so. By obtaining the protection of the right to an abortion through judicial means, liberals handed conservatives a mobilizing issue.

One could conclude that the lesson to be learned here is that we should utilize judicial power carefully. Sometimes the use of judicial activism to find and protect basic human rights is desirable, for it shines a light that the public soon sees as wise and just. Brown is an example of such activism. However, when the wisdom of the judicial branch gets too far ahead of the public, the public's reaction is, well, reactionary.

But beyond realizing the importance of utilizing judicial power with restraint, the more significant lesson here is to recognize the importance of creating an atmosphere where the democratic process will work to create enlightened, progressive public policy. If progressives find themselves battling in the courts to win rights, they must consider whether the democratic, legislative process might be failing.

There are numerous organizations that exist for the purpose of protecting fundamental rights in American society. As Humanists, we sympathize with the missions of these organizations, and sometimes we even find ourselves working in coalition with them. But our mission, as Humanist activists, transcends the need to win the next political or legal battle--our mission is to inject humanistic thinking into the American psyche. This, in turn, will create a public that willingly passes progressive, not regressive, public policy legislation, making judicial activism unnecessary.

To Humanist activists, the failure of the democratic process to generate progressive public policy in America highlights our primary mission. With healthy doses of Humanism, the American democratic landscape can be reshaped so that the legislative process generates progressive, enlightened public policy. By raising public awareness and acceptance of Humanism, thereby demonstrating that a humanistic worldview is well suited to bring society forward, Humanist activists can weaken the legitimacy achieved by religious conservatism and cause the center of gravity in American culture to shift towards progressivism.

David Niose is an attorney and treasurer of the American Humanist Association.