Tuesday, February 10, 2009
With the economic crisis looming and debates about a Presidential/Congressional "fix," I've been returning to a conversation between Franches Fox Piven and ConLaw Prof Steve Loffredo, 11 NYC Law Review 1-21 (2007), which I moderated with constitutional law students in attendance. Here are some excerpts:
RR: We have recently discussed, as a class, San Antonio Independent School District v. Rodriguez [411 US 1 (1973)] . . . . At one time, I considered this opinion one of the top five worst Supreme Court opinions--now there are many more. I have always thought that if the case had been decided differently, law and social change could have proceeded in a very different way. However, lately, I have been thinking that is perhaps too optimistic. So I guess I would like to open it up and ask for your thoughts.
Professor Frances Fox Piven: Well, it is much too optimistic. The optimism flows from a certain way of thinking about social progress that begins with principles. If we all accept the principle that extreme need should be eliminated in this world; if we can get that principle out there, then extreme need will be eliminated. Or if we can somehow make it a law that extreme need should be eliminated, then some kind of action will follow. Principles sometimes do affect social life; but they affect social life when they become the inspiration of social forces, of movements, of real political formations that exert pressure. . . .
Professor Stephen Loffredo: I will start by saying that the San Antonio decision was enormously disappointing; it was one of the worst cases not only because the court endorses unequal treatment of poor people in an area that is sort of one of the core concerns of government, which is education, but because we know, in our society, education is really the motor of mobility. So, to the extent that education is the motor of economic mobility, it is the pathway out of poverty. . . . I agree with Professor Piven that if your goal is to alter capitalism, to make it more humane, all indications are that the tool for such change is not the American judiciary. The American judiciary has been very, very good to capitalism. And I am not just talking about the Lochner period but really throughout our history.
Embedded in your question is part of the other answer you gave, which is whether principle or principle in the judicial context can precipitate substantial movement forward--progressive change through judicial decree? The answer is no. As Professor Piven said, you need active social movements. That is really the only way that substantial, progressive social change has happened.
The questions now seem to be whether there exists any "social movement," and if so, whether the two non-judicial branches are responsive to it. And if there is some response, what the judiciary might do when it is called upon to "say what the law is."