The Hindu Business Line : They are bad at tackling, good at piling on

"Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner." This matter-of-fact comment about judges is a snatch doing its rounds in blogs, picked up from an article in the latest issue of Virginia Law Review, by Jack M. Balkin of Yale Law School.

On the same lines, here is another analogy: "When it comes to sensing large-scale changes in social attitudes and acting on them, courts are often like the cuckolded husband in the French farce: always the last to know." Lesson two, therefore, according to Balkin, is: "Courts are bad at tackling, good at piling on." Much like the cops in our movies, perhaps.

This is just one of the seven lessons on "how the constitutional system works and develops over time" that Balkin draws from a 50-year old verdict in Brown vs The Board of Education of Topeka, that put an end to racial segregation in the US public schools saying, "separate educational facilities are inherently unequal". Accordingly, the first lesson is that the Supreme Court is not countermajoritarian; it is nationalist. "It is responsive to national political majorities as opposed to regional majorities, and it is responsive to the views of national elites as opposed to the views of regional elites," explains Balkin, citing Lawrence vs Texas of 2003 when the court had to discuss civil rights of homosexuals, and Roe vs Wade of 1973 on abortion.

Lesson three is that courts tend to protect minorities "just about as much as majorities want them to." Balkin points out that court intervention happens "only after minorities have shown a fair degree of clout in the political process." The most effective way for minorities to secure protection by courts and legislatures, according to the author, is to demonstrate that such protection "is in the interest of majorities, is required by values that majorities hold dear, or is necessary to maintain a positive self-image for majorities." Is this an insight that may help the minorities here?

Next lesson that Balkin draws is that social movements change constitutional law, but not as they intend. Apart from influencing political parties, social movements wield influence by appealing to the elite, from whom "judges tend to be selected". However, he highlights `four caveats': One, mortality rate is high in social movements. Two, they often lead to "powerful countermobilisations". Three, if social movements were to taste blood in courtrooms, you might find focus shift to "litigation rather than direct action or legislative lobbying". And the last caution is that such pursuits of legal rights can subtly alter and reshape "the nature of the social movement itself" and even "create splits within the group's membership".

Lesson five, "principles are compromises, or, you only know what a decision means later on." The compromise would reflect "the vector sum of political forces, even though doctrines are formally phrased and articulated in terms of the reasoned elaboration of legal principles". Over generations, the precedent gets interpreted in many ways, with new meanings emerging all the time. Sixth lesson is that courts can easily strike down criminal laws managing the regulatory state, but managing a welfare state is hard to do. As we know only too well, "government compliance may be hard to monitor, and government officials may have many different ways of dragging their heels and evading a court's constitutional demands."

The last lesson is that courts don't care about constitutional theory; "constitutional theorists care about courts." Quite depressing thought because, according to Balkin, the apex court's decision making "does not seem very much influenced by normative constitutional theories about the proper way to interpret the Constitution." Do you have a different opinion?

ExParte@TheHindu.co.in

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