Liberals’N’Lawsuits

[This article, originally published in 2005, was written for National Review Online by Supreme Court nominee Neil Gorsuch.]

Who do you think said this: “Reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives. . . . Whatever you feel about the rights that have been gained through the courts, it is easy to see that dependence on judges has damaged the progressive movement and its causes”? Rush Limbaugh? Laura Ingraham? George Bush? The author is David von Drehle, a Washington Post columnist. This admission, by a self-identified liberal, is refreshing stuff. It is a healthy sign for the country and those rethinking the direction of the Democratic party in the wake of November’s election results. Let’s hope this sort of thinking spreads.

There’s no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose.

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