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He's Not Robin HoodWhat Obama really meant by "redistributive change."

By Emily BazelonPosted Tuesday, Oct. 28, 2008, at 4:23 PM ET

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What's more, the idea that courts do have a role to play in the funding of schools gained a lot of traction after Rodriguez—in the state courts, as opposed to the federal ones. Sometimes, that is because state constitutions provided for a right to education. In some states, like California, judges instructed the state to take steps to equalize school funding from district to district. In others, like Kansas and Kentucky, and in ongoing litigation in Connecticut, the court decisions are framed in terms of adequacy of funding—making sure each district has enough, rather than the same amount. Either way, it's redistribution of what's become a rather routine sort. This is what Obama was talking about when he said in the radio interview, "Suddenly, a whole bunch of folks start bringing these claims in state court under state constitutions that call for equal educational opportunity, and you see state courts with mixed results being more responsive to it."

What comes through far more clearly in the interview is a tactical point: Obama thinks it's a mistake to rely too much on courts to further any broad agenda. He says, "I think one of the tragedies of the civil rights movement was that the civil rights movement became so court-focused. I think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that." And then he continues, "Maybe I am showing my bias here as a legislator as well as a law professor, but you know … the institution just isn't structured that way."

This is a whole separate, bitter, ongoing fight in legal circles—over when to turn to courts as a means of change and when to turn to the legislature, which is directly accountable to the voters and so perhaps the safer and more stable route. It's a truism that conservatives favor legislative change and see the courts as an undemocratic end run around it. They especially think that about any push for "redistributive change," Obama's subject here. In this interview, Obama comes down on the traditionally conservative side, albeit for presumably different reasons. He thinks the civil rights movement misjudged the courts' utility—they were good for providing for a right to vote and for black people to sit with white people at a lunch counter, to use Obama's examples, but they're not good for deciding who's entitled to what government benefits or property rights. "Obama is with Bork on this," Cass Sunstein, an Obama adviser, told me, referring, of course, to the arch-conservative, famously not-confirmed-to-the-Supreme Court Judge Robert Bork.

OK, but if Obama doesn't think the courts will wave the magic wand of redistribution, isn't he still pulling for the legislature to wave it? This is where the McCain attack, in Sunstein's words, "is so ludicrous that to deny it makes one feel like one has come to crazy land." On the one hand, of course Obama is for redistribution. So is any politician, including John McCain, who favors a progressive income tax. Governments constantly take more from one group and give more to another. That's what Medicare is about, and the whole idea of funding public schools in the first place.

The McCain attack isn't about these broad and popular programs, of course. It's about the notion that Obama's "basic goal" is "taking money away from people who work for it and giving it to people who Barack Obama believes deserve it," in the words of McCain adviser Doug Holtz-Eakin. "Europeans call it socialism." For this—the Obama version of large-scale wealth distribution—there is no evidence. There is only his support for garden-variety social-welfare programs, like unemployment insurance and the Earned Income Tax Credit, a tax refund for low-income working people. "Of course it's not a surprise to say that Obama wants the EITC or to expand the unemployment insurance program, or that he's in favor of education reform that's going to cost some money and will give a decent education to people who don't have it," Sunstein says. "But we already knew that. And it's not socialism." True. But it doesn't make for much of an attack on the stump.