A few weeks ago my brother-in-law asked me which branch of government I thought was the most powerful. I immediately answered, “Legislative”. He was surprised. As a fellow law student we read case after case where the Supreme Court overturned laws that it felt were unconstitutional. While that is true, it requires Herculean effort for the Supreme Court to overturn a law. The legislature can just write a new law whenever they want. That gives them almost all the power.
It has long been my feeling that legislatures are the best place to effect change in laws. Citizens can petition their law makers to make laws that they want and of they don’t make law that their constituents like, they can vote someone who will into office. Is this a slow process? Sure. But the Supreme Court process is even slower and the chance that your case will be heard is slim.
There is a second issue when the Judicial Branch speaks from “on-high” and mandates a change in law. This was illustrated to me by my supervising research attorney at the California Court of Appeals. He agreed with me that the Legislative Branch is most powerful. He added that sometimes a Supreme Court opinion can have the reverse effect that it intends. For example, in Roe v. Wade, the court held that laws banning / highly regulating abortion in the first trimester were unconstitutional. The reaction from the strident voice of opposition was not the acquiesce and lay low. In fact, it had the opposite affect. Millions and millions of dollars were poured into “overturning Roe”. This went on for decades. Interest groups spent all their energy trying to get Roe reversed. But if Roe had not sued in the Supreme Court or if the Supreme Court had denied to see hear Roe, it is very likely that the legislatures would have come around to see the law the way the Supreme Court saw it. In other words, if all the money and time and energy of the Supreme Court case had been spent on activism and PR in favor of looser abortion restrictions, it would have happened organically. And the reaction would not have been so severe.
Sometimes the people are not ready for the ruling of the Supreme Court. Sometime they need time to adjust their old views and in time, they will get it right. This is one of the main reasons there has been weak attempts to take the issue of same sex marriage to the Supreme Court. Even if the Supreme Court rules in their favor, a huge backlash is predicted. This would wind up having the opposite of the intended effect. Time, energy and money would be spent on “overturning” the decision. It is wiser to just wait until the people are willing to give them the rights they desire. (Of course this assumes this is bound to happen. As I wrote a while back in Human Beings Are Social Beings, more and more people know gay individuals and couples, it is going to be harder and harder to look them in the eye and say “no rights for you”. So I am pretty sure it will probably happen eventually.)
Another perfect example of change having the opposite of its desired effect is in the area of Health Care Reform. President Obama and almost all the Democrats want to regulate Health Care. They promise that rates will drop, insurance companies will be forced to be fairer and less discriminatory and everything will be wonderful. As I am self-insured, the new laws may actually help me, but probably not before I get a job with medical benefits.
Interestingly enough, the proposed bill is having the OPPOSITE effect. My health care premiums went up by 30% a couple months ago. My coverage is the same. My plan is the same. I just pay way more. The NY Times even had a write-up on MY insurance company. (Editorial – The Lesson of California’s Anthem Blue Cross on Health …) Sometimes, when change is forced down people’s throats, the effect is the opposite of what is intended. HCR may be wonderful, but in the meantime, it is squeezing millions of self-insured folks as they wait…
So how does change happen? It is best for it to happen organically. It is best for things to evolve, change slowly without huge monumental changes from “on-high”.
It reminds me of a story I read once:
The sun and the wind were having a contest to see you could get the man to remove his coat. The wind blew hard and the man clutched his coat tighter. The wind blew even harder and the man redoubled his efforts to hold his coat. The sun shone bright and the man got warm and took his coat off on his own.
Think about that.
(Where are we going with this? You’ll see soon.)