Even when we don’t like the outcome…

Photo courtesy of the Library of Congress

Maybe you’re not like me, but some moments stick in my mind, serving as powerful lessons of critical truths, primarily because…

I was so totally, abjectly, entirely wrong.

One of those moments came back to me last week when I was talking with some students about judicial policymaking and the significant strides for social justice that have been made through the court system (yes, I have the coolest job ever).

One of my students responded pretty vociferously that such decisions, while fortunate and even laudable from our particular perspective, are still concerning, because they happen in an “undemocratic” judicial system over which we have very little influence, in terms of the traditional levers of public pressure. She raised the Citizens United ruling on campaign finance as a glaring example of how court decisions can, in their trademark “fly in the face of public opinion” way, just as easily go against us, as for us.

And she’s not wrong, of course. From Plessy v. Ferguson to the present day, the annals of judicial policymaking in the United States (whether or not the courts want to acknowledge it as, in fact, “judicial policymaking”) are littered with cases that, from the perspective of social work values or our vision of justice, went the “wrong way.”

And yet.

The moment that came back to me was when, as I crafted the press release about the Federation for American Immigration Reform’s lawsuit against Kansas’ instate tuition law for immigrant students, I was powerfully reminded of the role that our judicial institutions play in protecting the rights of the vulnerable, and serving as a true check on other forms of power. I thought that my line, in the release, about opposing this “appeal to the courts to overturn legislation adopted democratically by elected Kansans” was a strong argument. After all, what’s not to like about majority rule?

A lot, actually.

One of our partners on the legislative advocacy to pass the instate tuition law was quick to call me, in response to the draft I circulated. He pointed out that we were, at the same time, hoping that the Kansas Supreme Court would call the legislature on its woefully inadequate school finance formula, in particular the way that it fails our lowest-income districts. He (pretty kindly, it must be said) noted that the instate tuition case would be heard down the street from the Brown v. Board of Education National Historic site, a brick and mortar representation of how majority rule can be so dangerous, and how courts can, in fact, spark a revolution.

He didn’t say, and he didn’t have to, that we can’t have it both ways.

Our judicial system is an indispensable part of our governance, when we celebrate it (thanks, SCOTUS, by the way, for refusing to hear the appeal of the California instate tuition lawsuit last summer!) and when we loathe it.

And access to that judicial system, and continual attention to its integrity, must continue to be rallying points for social justice advocates. Like it or not.

I took that line out of the press release.

And we won the case. And the appeal.

But even when we lose, I’m glad the courts are there.

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