The Post-Brown Era in Judicial Policymaking

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Abstract Brown v. Board of Education marked the beginning of a long era in American politics in which courts, litigation and legal rights were associated with progressive causes. That association, however, is now eroding. The left’s discontent with the Supreme Court is well known, but less attention has been paid to liberal concerns about judicial policymaking – including some of the very mechanisms honed by liberals in the Brown era – that go well beyond the Court. The Brown era obscured a simple truth about lawsuits that the next few years are likely to clarify: They are much better at gumming things up than they are at making things work. Policymaking through litigation, though associated with liberals in the Brown era, in fact reflects a deep distrust of centralized governance. Given that it is conservatives, not liberals, who are more often interested in constraining government, this makes lawsuits ordinarily a more congenial policy tool for Republicans than Democrats. For many elements of the Democratic agenda of the next few years, litigation is likely to prove a clumsy tool, more effective in the hands of opponents than proponents.