Student Blogger - #13Amend Live Blog: Top-Down or Bottom-Up?
Gerald Rosenberg comments: Rosenberg argues that lawyers are systematically mistaken about the role of the courts and the Constitution in social change. In this country, we lack a more equal and just politics and the courts can and will only reflect this, not shape it. The panelists share a top-down notion of social change. Their implicit claim is that if the Court accepts a more expansive view of constitutional rights, social change will follow. Rosenberg's notion, instead, is bottom-up. Social change will be reflected by the Court; but it must happen first. Judicial interpretation did not begin to change until deep racism started to fade. The makeup of the Court determines how cases will go, and this makeup is a result of who is president and who is in Congress. Rosenberg went on to show the application of this perspective to the papers presented in this panel. He argues that it is wishful thinking to think that the Roberts Court would be likely to adopt Carter's theory. And even if it did, would racial profiling really end? He quipped that the Warren Court's progressive civil rights holdings changed fundamentally what police lie about. He is skeptical that racial profiling can be stopped while racial prejudice continues to exist. In response to Ontiveros, he suggests that it is unlikely that the courts will be able to accomplish anything useful in the immigration context when we have not yet figured out politically how to deal with immigration. Rosenberg agrees with Taslitz that Congress has more power to control the criminal justice system than it has exercised; however, he does not agree that it needs to, or can, use Section 2 of the 13th Amendment to do this. The current Court is unlikely to accept these arguments even if they are technically perfect. In response to Zietlow, he argues that we need better ways of electing people who share our goals, not better Constitutional theory. He rejects the claim that politicians consider the Constitution in making policy decision. Instead, he argues that they make policy decisions first and then search for a Constitutional basis.