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🪵 The Threshold

Civil-liberties litigation shifted to state courts when the Supreme Court grew conservative

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4 min read

Civil-liberties litigation shifted to state courts when the Supreme Court grew conservative

Evidence

Faced with obstructionism by Southern political officials, civil rights groups sought relief from the federal district courts. However, these courts often could not—or did not—help. Some Southern district court judges, reflecting the political milieu in which they served, sought to contain rather than enforce Brown. Thus, Judge Davidson, whose rulings in a Dallas desegregation case were reversed six times, lamented that the “white man has a right to maintain his racial integrity, and it can’t be done so easily in integrated schools.” Even those judges committed to upholding Brown found it difficult to know what to do. The Supreme Court’s mandate in Brown II was ambiguous at best, yet the Court refused to hear cases in which it might clarify its position. In the absence of guidance from the Court, some federal judges used their discretion to narrow the effect of Brown, maintaining that it merely required the use of race-neutral criteria for assigning pupils. Thus, school districts met their constitutional obligations even if their schools remained almost completely segregated. — G. Alan Tarr, Judicial Process and Judicial…, 1545 (#expands, via linked claim)

The key dynamic here is that First Amendment jurisprudence, especially over the last two decades, has reflected a “conservative-libertarian” interpretation of First Amendment rights. As constitutional law scholar Steven Heyman suggests, “In recent decades, the First Amendment has become one of the most important means by which judges have sought to advance a conservative-libertarian agenda.” This has produced many dramatic judicial decisions, including the US Supreme Court’s rejection of any constraints on the role of money in election campaigns, its rejection of restrictions on hate speech and pornography, and its holding that the right to free association takes precedence over state civil rights laws that bar discrimination. — Shoshana Zuboff, The Age of Surveillance Capitalism, 350 (#qualifies, via linked claim)

Starting in the 1980s, Jay Sekulow and others on the extreme wing of the religious right began to take a curious line of argument in Establishment Clause cases. In most such cases, there is a distinction between the First Amendment right to the free exercise of religion—such as a public school teacher’s right to pray—and the First Amendment prohibition on the establishment of religion—such as an attempt by that public school teacher to lead students in prayer during class. Rather than invoke the Free Exercise Clause, however, Sekulow and his allies suddenly began to appeal to the Free Speech Clause of the First Amendment. In an argument that formed the tip of the legal spear aiming at the Establishment Clause, they asserted that religion is just speech from a certain, religious point of view. And to prohibit speech of any type on the basis of viewpoint is, by definition, to violate the Free Speech Clause. — Katherine Stewart, The Power Worshippers, 859 (#exemplifies, via linked claim)

Categorization

  • XREF: connects to: State courts protect rights the federal Constitution does not guarantee — G. Alan Tarr, Judicial Process and Judicial…, 3371; Change in federal court orientation diverts rights litigation into state courts and constitutions. — G. Alan Tarr, Judicial Process and Judicial…, 1729; Court composition changes drove litigants to shift between courts and legislatures — G. Alan Tarr, Judicial Process and Judicial…, 3143 (+5 more)

Broader Connections

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