Judge Gorsuch and the Role of Public Interest Litigation in our Democracy
by Alan K. Chen
In 2005, shortly before he was appointed
to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Review criticizing liberals’ reliance on litigation to accomplish social reform. This
was not a surprising position for one of Federalist Society’s rising stars to take. Conservatives have long frowned upon public interest lawsuits
as a means of pursuing social change.
But (now Judge) Gorsuch’s position was
more nuanced than the standard conservative refrain. He argued that liberals
could be more successful in achieving social change by pursuing reform through
the democratic process. To be sure, there is no shortage of critics on the left
(including one cited by Gorsuch) who have made the same claim about the
limitations of public interest litigation, including former President
Obama. They also have suggested that
progressive reform through community organizing and other forms of democratic
participation is not only more effective than reform lawsuits, but also more
sustainable.
Debates over the efficacy and legitimacy
of reform litigation have thrived since the movement to abolish slavery, when
lawyers and other advocates disputed whether abolition could be more
effectively achieved through lawsuits or legislative repeals. As it turns out,
it took a war -- a real one, not a cultural one -- to resolve that divide.
The critique of litigation’s role in
social reform raises important points about the nature of our political and
legal system. But the notion that democracy is superior to litigation as a
means of social reform overlooks something critical. Litigation itself is a
deeply embedded way of participating in our constitutional democracy for the politically
powerless. It is a manner of expressing the interests of marginalized groups,
for whom the prospect of meaningful democratic reform is bleak. Indeed, the
Supreme Court has recognized that litigation for social causes is a form of constitutionally
protected expression.
It is facile to suggest that prisoners,
transgender persons, or Muslim Americans should not seek social justice from the
federal judiciary because they can effectively mobilize through the democratic process.
Indeed, this is one reason the NAACP sought relief through the federal courts
rather than politics in its fight to end racial segregation, culminating in the
landmark decision in Brown v. Board of Education. The recent lower federal
court injunctions against President Trump’s Executive Orders on immigration are
another example.
The same goes for conservative
constituencies whose views place them at the margins of our political system -- evangelical
Christians, gun owners, and even extreme conservative voices whose speech is not palatable to
mainstream America. Conservative public interest organizations have increasingly turned to litigation to
achieve what they have not been able to accomplish through politics, including
religious liberty protections for business owners. In achieving social change
where there are structural flaws in our democratic system, litigants and the
federal courts contribute to our democracy, not detract from it.
None of this is to say that social
reforms ought to be achieved exclusively through litigation. As Scott Cummings and I have written in our book about contemporary public interest lawyering, public interest work has evolved over the past generation to embrace
a multivalent approach to social reform, including, but not relying on,
litigation, and extending to community organizing, legislative reform, and public
education. None of these approaches can
work alone; all of them can accomplish a lot when employed in a complementary
fashion. Through these efforts, public interest litigation advances democracy
not as a centerpiece, but as one of a set of participatory tools.
Finally,
unlike political institutions, federal courts have rules about which facts
count. In an era when fake news pervades
our politics, it is hard to imagine an informed debate over extending rights to
Syrian refugees or children of undocumented immigrants. As Judge Gorsuch knows from his distinguished
service on the federal bench, courts have rules about the reliability of
evidence that enhance the possibility of reasoned decisions in ways that simply
aren’t possible in political arenas.
As a nation, we can only hope that if
Judge Gorsuch is confirmed as a Supreme Court Justice, he will be open to the
idea that litigation is actually a component of the democratic process. Public interest litigation
isn’t the antithesis of democracy; in the twenty-first century, it may be
democracy’s last refuge.
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