Much has been made of the
Chicago Public Radio discussion on "The Court and Civil Rights," from 2001, in which Barack Obama said:
"I think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that."
"I'm not optimistic about bringing about major redistributive change through the courts, the institution just isn't structured that way....
"You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time."
The court's just not very good at it and politically it's very hard to legitimatize opinions from the court in that regard. So, I mean, I think although you can craft theoretical justifications for it legally, you know, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts...."
Last Tuesday, I noted
here that the way Obama said "courts," it just didn't sound like the end of the sentence. It wasn't the end of the sentence, however, I don't think knowing the end of the sentence particularly changes anything, at least not in my opinion but, for what it's worth, here is the rest of what he said, at that point in the discussion:
"...I think although you can craft theoretical justifications for it legally, you know, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts, I think that is a practical matter, our institutions just aren't really equipped to do it."
If anything, it continues the line of thinking that Obama feels the better place to make major redistributive change is through other means than the Supreme Court, you see, during the course of that discussion, Obama had also said:
"I think that if you look at the victories of and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples so that I would now have the right to vote, I would now be able to sit at the lunch counter and order and, as long as I could pay for it, I'd be okay but, the Surpreme court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in the society and, to that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical, it didn't break free from the essential constraints that were placed by the founding fathers in the constitution, at least as its been interpreted, and Warren Court interpreted in the same way, that generally the constitution is a charter of negative liberties, says what the states can't do to you, says what the federal government can't do to you but, it doesn't say what the state government must do on your behalf, and that hasn't shifted and one of the things that I think, the tragedies of the civil rights movement was because the civil rights movement became so court focused."
The statement does not change the fact that Obama seemed to feel, in 2001, that the civil rights movement and its litigation strategy was successful in vesting, as he said, "formal rights in previously dispossessed peoples," but he alluded to the civil rights movement as failing in causing the court to venture, he said, "into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in the society," for that reason, he felt, "as radical as I think people tried to characterize the Warren Court, it wasn't that radical, it didn't break free from the essential constraints that were placed by the founding fathers in the constitution, at least as it's been interpreted."
I would note, Obama referred to the constraints the Warren Court failed to break as "essential" constraints, I think that is important and further provides focus to the fact that the panel was looking for ways to effect those "issues of redistribution of wealth and more basic issues of political and economic justice in the society," but, at least Obama, didn't feel that the courts were the best way to accomplish those changes.
One could certainly make an argument that by choice of the words "success" and "failure" and their implied application by Obama, that he tends to believe it would have been good, or a "success" if the Warren Court
had ventured into the issues of redistribution of wealth and more basic issues of political and economic justice and that, since he later pointed out, the Warren Court generally interpreted the constitution as, "a charter of negative liberties" that says "what the states can't do to you," and "what the federal government can't do to you but, ... doesn't say what the state government or the federal government must do on your behalf," that Obama might have felt the state and federal government could be doing more on your behalf and, specifically, he might have felt it should be doing more in the areas of redistributive, political and economic justice, otherwise, why would he call the civil rights movement a failure in that regard, in regards to "bringing about economic change through the courts?"
That is what worries some people, and I believe rightly so, and it appears that it worried Obama and others on the panel of speakers also, but their concern or worry appeared to be dependent upon which side of the political ideological sphere the state and federal governments' social or moral change, through the courts, was represented.
I would also point out that later, Obama and other guests make clear they understand there is a difference between redistributive and distributive actions on the part of the court.
In a nutshell, in my opinion those on the panel were looking for and discussing what was the best way to effect social, political and even moral change in America and in Obama's opinion the Supreme Court didn't seem to have much of a track record of success in that regard.
A caller named Anna, who had been a community organizer and planned to go into labor organizing later asked the speakers, "to comment on why they [thought]," "one of the great tragedies of the civil rights movement was the focus on the courts and not enough on the community work." She could not remember who had made that comment but, it was Barack Obama who had made it and he replied:
"Well, as a former community organizer, this is Barack Obama, it's because organizing's hard. You know, litigation is hard but organizing is harder." Obama added, "You know, part of it is just that, you know, it's difficult to mobilize change at the local level so, that makes a lot of difference."
Gretchen Helfrich, the host of the Chicago Public Radio discussion seemed bent on undermining the reputation of the Supreme Court, calling into question its stability and noting that, as she put it, "[The court] doesn't accomplish stable social change because you always have the intervention of a not clearly predictable act." She kept bringing up Bush v Gore, a decision she clearly despised and disagreed with. Here's what she said: "I'm wondering if the court's position, at the time of Bush v Gore, and don't worry, we're not going there again, but I just want to say, one of the things people said was, 'the Court is this institution that has so much respect and authority and legitimacy so, it could use its institutional reputation to wade into this controversy and impose a solution,' possibly at the expense to that reputation, okay so, you all heard those arguments. My question is, how stable is that?"
Her answer came from Susan Bandes, Professor of law at DePaul University and the editor of the book,
“The Passions of Law.” Bandes responded, "I think that we may have kind of a consensus here that the court can, perhaps, bring us a little bit ahead, you know, and act as a kind of a moral signpost in the distance but it can go too far ahead and, you know, we need the community organizers, we need Congress, you know, we need some kind of a dialog and a coalition in order for any kind of change to be at all lasting. I think it was Bickle, Peter Bickle, who has said the court is the least dangerous branch. Really all its got is its capital, it hasn't got the power over the purse, it hasn't got the power of the sword and we have to respect it or it loses everything."
Clearly, this "bird of a feather" panel, hoped and wished to effect social, political, economic and even moral change in America and the effect the civil rights movement played in the Supreme Court was a topic of discussion, as well as the Supreme Court in general, but much of the discussion was over the reach of the Supreme Court and how far it should go in the direction of, as Obama worded it, "economic change through the courts," but the discussion didn't stay focused only on economic change. That topic, the topic of Obama's admission of contradiction within the politically left sphere will likely be the topic of my next post. It pertains to the "moral" changes I kept throwing into this posting. There is a reason for that.
