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When the Court Gets Ahead of the Political Process

June 20, 1993|By RUTH BADER GINSBURG

Significantly in relation to the point I just made about women and men living together, the end of the Jim Crow era came in 1967, 13 years after Brown: The case was Loving v. Virginia; the law under attack, a state prohibition on interracial marriage. In holding that law unconstitutional, the court effectively ruled that the doctrine of ''separate but equal'' was dead -- everywhere and anywhere within the governance of the United States.

The framers of the Constitution allowed to rest in the court's hands large authority to rule on the Constitution's meaning; but the framers . . . armed the court with no swords to carry out its pronouncements. President Andrew Jackson in 1832, according to an often-told legend, said of a Supreme Court decision he did not like: The chief justice has made his decision, now let him enforce it. With prestige to persuade but not physical power to enforce, with a will for self-preservation and the knowledge that they are not ''a bevy of Platonic Guardians,'' the justices generally follow -- they do not lead -- changes taking place elsewhere in society.

But without taking giant strides and thereby risking a backlash too forceful to contain, the court, through constitutional adjudication, can reinforce or signal a green light for a social change. In most of the post-1970 gender-classification cases, unlike Roe, the court functioned in just that way. It approved the direction of change through a temperate brand of decision-making, one that was not extravagant or divisive.

Roe v. Wade, on the other hand, halted a political process that was moving in a reform direction and thereby, i believe, prolonged divisiveness and deferred stable settlement of the issue.

The most recent Planned Parenthood decision, although a retreat from Roe, appears to have prompted renewed dialogue, a revival of the political movement in progress in the early 1970s. That renewed dialogue, one may hope, will, within a relatively short span, yield an enduring resolution of this vital matter.

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