The Hollow Hope: Can Courts Bring About Social Change?

By Gerald N. Rosenberg

Presents a powerful argument for the limitations of judicial action to support significant social reform—now updated with new data and analysis.
 
Since its first publication in 1991, The Hollow Hope has spurred debate and challenged assumptions on both the left and the right about the ability of courts to bring about durable political and social change. What Gerald N. Rosenberg argued then, and what he confirms today through new evidence in this edition, is that it is nearly impossible to generate significant reforms through litigation: American courts are ineffective and relatively weak, far from the uniquely powerful sources for change they are often portrayed to be.
 
This third edition includes new data and a substantially updated analysis of civil rights, abortion rights and access, women’s rights, and marriage equality. Addressing changes in the political and social environment, Rosenberg draws lessons from the re-segregation of public schools, victories in marriage equality, and new obstacles to abortion access. Through these and other cases, the third edition confirms the power of the book’s original explanatory framework and deepens our understanding of the limits of judicial action in support of social reform, as well as the conditions under which courts do produce change. Up-to-date, thorough, and thought-provoking, The Hollow Hope remains vital reading.

• Language: English
• Publisher: University of Chicago Press
• Release date: May 5, 2023
• ISBN: 9780226312507

Book preview

Cover Page for The Hollow Hope

The Hollow Hope

The Hollow Hope

Can Courts Bring About Social Change?

Third Edition

Gerald N. Rosenberg

The University of Chicago Press

CHICAGO LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 1991, 2008, 2023 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637.

Published 2023

Printed in the United States of America

32 31 30 29 28 27 26 25 24 23     1 2 3 4 5

ISBN-13: 978-0-226-31233-0 (cloth)

ISBN-13: 978-0-226-31247-7 (paper)

ISBN-13: 978-0-226-31250-7 (e-book)

DOI: https://doi.org/10.7208/chicago/9780226312507.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Rosenberg, Gerald N., author.

Title: The hollow hope : can courts bring about social change? / Gerald N. Rosenberg.

Description: Third edition. | Chicago : The University of Chicago Press, 2023. | Includes bibliographical references and index.

Identifiers: LCCN 2022045940 | ISBN 9780226312330 (cloth) | ISBN 9780226312477 (paperback) | ISBN 9780226312507 (ebook)

Subjects: LCSH: Courts—United States. | Political questions and judicial power—United States. | Sociological jurisprudence. | Civil rights—United States. | Women’s rights—United States. | Social change.

Classification: LCC KF8700 .R66 2023 | DDC 340/.115—dc23/eng/20221201

LC record available at https://lccn.loc.gov/2022045940

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

For Rachel and Joshua:

When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war. So I say to you, walk with the wind . . . and let the spirit of peace and the power of everlasting love be your guide.

John Lewis, 2020

Contents

List of Tables and Figures

Preface to the Third Edition

Preface to the Second Edition

Preface to the First Edition

Introduction

1 : The Dynamic and the Constrained Court

Part 1: Civil Rights

2 : Bound for Glory? Brown and the Civil Rights Revolution

3 : Constraints, Conditions, and the Courts

4 : Planting the Seeds of Progress?

5 : The Current of History

Part 2: Abortion and Women’s Rights

6 : Transforming Women’s Lives? The Courts and Abortion

7 : Liberating Women? The Courts and Women’s Rights

8 : The Court as Catalyst?

9 : The Tide of History

Part 3: Marriage Equality

10 : You’ve Got That Loving Feeling? The Litigation Campaign for Marriage Equality

11 : What a Long, Strange Trip It’s Been: Mobilization, Countermobilization, and State Action

12: The Times They Are a-Changing

13 : Conclusion: The Fly-Paper Court

Epilogue

Appendixes

1. Black Children in Elementary and Secondary School with Whites, State-by-State Breakdown, 1954–1972

2. Blacks at Predominantly White Public Colleges and Universities: State-by-State Breakdown

3. Black Voter Registration in the Southern States, Pre– and Post–Voting Rights Act, State-by-State Breakdown

4. Data Correction for Table 2.5

5. Laws and Actions Designed to Preserve Segregation

6. Method for Obtaining Information for Table 4.1 and Figure 4.1

7. Illegal Abortions

8. Method for Obtaining Information for Tables 8.1a, 8.1b, 8.2a, and 8.2b, and for Figures 8.1 and 8.2

9. Make Change, Not Lawsuits

10. Coding Rules and Method for Obtaining Information for Tables 12.2, 12.3, 12.4, 12.5, and 12.6

Case References

References

Index

Footnotes

Tables and Figures

Tables

Table 2.1  Black Children in Elementary and Secondary School with Whites, 1954–1972, Selected Years

Table 2.2  Desegregated School Districts, by Primary Source of Intervention and by Year of Greatest Desegregation, 1901–1974

Table 2.3a  Blacks at Southern, Predominantly White Public Colleges and Universities, 1963, 1965, 1966

Table 2.3b  Percentage of Black Enrollment at Southern, Formerly All-White Public Colleges and Universities, by State, 1970 and 1978

Table 2.4  Black Voter Registration in the Southern States, 1940–1970, Selected Years

Table 2.5  Black and Hispanic Students in 90%+ and 50%+ Minority Schools, Southern States, 1968–1969 to 2018–2019 School Years, Selected Years

Table 2.6  Black and Hispanic Students in 90%+ and 50%+ Minority Schools, 1968–1969 to 2018–2019 School Years, Selected Years

Table 2.7  Black Students as a Percentage of Total Enrollment at Southern, Predominantly White Public Colleges and Universities, 1980–2018, Selected Years

Table 2.8  Black and Hispanic Fall Enrollment in Degree-Granting Postsecondary Institutions, 1976–2018, Selected Years

Table 2.9  Registration and Voting by Race, 1978–2018 Election Years

Table 3.1  Federal Funds (in $ millions) for Public Elementary and Secondary Schools in Southern and Border States, 1963–1972, Selected Years

Table 3.2  Percentage of Public Elementary and Secondary School Budgets Received from Federal Funds in Southern and Border States, 1963–1971, and Percentage of Blacks in School with Whites, 1964–1965 and 1972–1973

Table 3.3  Selected Southern School Districts by Extent of Desegregation and Amount of Federal Funds Received, 1967–1970

Table 4.1  Magazine and Press Coverage of Civil Rights, 1940–1965

Table 4.2  Civil Rights Demonstrations, 1940–1965

Table 4.3  Income for Civil Rights Organizations, 1940–1965 (in $ thousands)

Table 4.4  NAACP and CORE Membership, 1944–1965

Table 6.1  Legal Abortions, 1966–2020

Table 6.2  Percentage of Hospital Providers Providing Abortions, 1973–1995, Selected Years

Table 6.3  Percentage of Counties without Abortion Providers and Percentage of Women Aged 15–44 Residing in Those Counties, 1975–2017, Selected Years

Table 6.4a  Percentage of Women Going Out of State of Residence to Obtain Abortions, 1979–1982

Table 6.4b  Percentage of Women Traveling Large Distances to Obtain Abortions, 2011 and 2014

Table 6.5  Abortion Training in Hospital-Based Residency Programs in Obstetrics and Gynecology

Table 6.6  Number of Abortion Providers, 1973–2017, Selected Years

Table 6.7  Abortion Providers by Type, Number, and Percentage of All Abortions Performed, 1973–2017, Selected Years

Table 6.8  Vote Choice among Those Citing Abortion as the Most or One of the Most Important Issues (based on exit poll surveys)

Table 7.1  The Earnings Gap: Women’s Earnings as a Percentage of Men’s Earnings, Median Earnings of Full-Time Year-Round Workers, 1955–2019

Table 7.2  Gender Segregation in Employment: Occupations in Which Women Are 80% or More of Employees and 20% or Less, 2021, Selected Occupations

Table 8.1a  Magazine and Press Coverage of Abortion, 1940–1976

Table 8.1b  Magazine Coverage of U.S. Supreme Court Abortion Decisions, 1973–1976

Table 8.2a  Magazine and Press Coverage of Women’s Rights, 1940–1976

Table 8.2b  Magazine Coverage of the Women’s Liberation Movement, 1968–1976

Table 8.3  Membership in the National Organization for Women and the National Abortion Rights Action League, 1967–1985

Table 10.1  Key Events in the Movement for Marriage Equality, 1993–2015

Table 12.1  Magazine and Press Coverage of Same-Sex Marriage and Alternative Terms, Reader’s Guide to Periodical Literature, 1990–2014

Table 12.2  New York Times Entries Mentioning Same-Sex Marriage, Gay Marriage, or Homosexual Marriage, by Year, 1980–2004, 2006, 2008, 2010, 2012, 2014

Table 12.3  New York Times Entries Mentioning Same-Sex Marriage, Gay Marriage, or Homosexual Marriage, by Month, Selected Years

Table 12.4  New York Times Entries Mentioning Same-Sex Marriage, Gay Marriage, or Homosexual Marriage, by Year and Content, 1980–2004, 2006, 2008, 2010, 2012, 2014

Table 12.5  New York Times Editorials and Op-Eds Mentioning Same-Sex Marriage, Gay Marriage, Homosexual Marriage, Domestic Partnership, or Civil Union, 1980–2004

Table 12.6  Chicago Tribune Editorials and Op-Eds Mentioning Same-Sex Marriage, Gay Marriage, Homosexual Marriage, Domestic Partnership, or Civil Union, 1985–2004

Table 12.7  Should Same-Sex Marriages Be Legally Recognized, 1988–1996 (percentages)

Table 12.8  Percentage of Americans Willing to Hire Gay Men and Lesbians for Various Occupations, 1977 and 2005

Table 13.1  Results of Litigation to Produce Significant Social Reform

Figures

Figure 2.1  Percentage of All Southern Black Schoolchildren Attending School with Whites, 1954–1972

Figure 2.2  Black Voter Registration in the Southern States

Figure 2.3a  Black Students in 90%+ and 50%+ Minority Schools, 1968–1969 to 2018–2019 School Years, Selected Years

Figure 2.3b  Hispanic Students in 90%+ and 50%+ Minority Schools, 1968–1969 to 2018–2019 School Years, Selected Years

Figure 4.1  Magazine Coverage of Civil Rights, 1940–1965

Figure 4.2  The Most Important Problem Facing This Country Today: Civil Rights Responses

Figure 4.3  Civil Rights Demonstrations, 1940–1965

Figure 5.1  Situating Brown Historically

Figure 6.1  Number of Legal Abortions, 1966–2020

Figure 6.2  State Laws Restricting Abortion, 1973–2021

Figure 6.3  Support for Legal Abortion, Gallup, 1975–2020, Selected Years

Figure 7.1  The Earnings Gap: Women’s Earnings as a Percentage of Men’s Earnings, Median Earnings of Full-Time Year-Round Workers, 1955–2019

Figure 7.2  Percentage of Workers in Traditionally Male Occupations Who Are Women, 2009 and 2019

Figure 8.1  Magazine Coverage of Abortion, 1940–1976

Figure 8.2  Magazine Coverage of Women’s Rights, 1940–1976

Figure 12.1  Percent Positive and Negative New York Times Stories on Same-Sex Marriage, 1996–2014

Figure 12.2a  Google Trends, Same-Sex Marriage, 2004–2018, All Categories

Figure 12.2b  Google Trends, Same-Sex Marriage, 2004–2018, News

Figure 12.2c  Google Trends, Same-Sex Marriage, 2004–2018, Law & Government

Figure 12.3  Support for Marriage Equality, 1996–2015, Gallup

Figure 12.4a  Support for Same-Sex Marriage, Public Polls, 1988–2011

Figure 12.4b  Support for Same-Sex Marriage, Public Polls, 1996–2013

Figure 12.5  Are Gay or Lesbian Relations Morally Acceptable or Morally Wrong, Gallup, 2001–2015

Figure 12.6  Know Friend, Family Member, or Coworker Who Is Gay or Lesbian, 1983–2015

Preface to the Third Edition

The impetus for this third edition was the Supreme Court’s 2015 decision in Obergefell v. Hodges that state laws prohibiting same-sex couples from marrying denied them fundamental constitutional rights. The decision was implemented with little pushback. Surely this is an example of the Court producing significant social reform. If so, then I wanted to know if the constraints and conditions proposed in this book explained both the decision and its implementation. While I was at it, it made sense to update the school segregation, abortion, and women’s rights chapters. Those chapters appeared unchanged in the second edition, meaning that by the third decade of the twenty-first century, they were woefully out of date. To keep the third edition to a reasonable length, I cut chapters 10 and 11 on the environment, reapportionment, and reform of the criminal law. They have been placed on a permanent website maintained by the University of Chicago Press at https://press.uchicago.edu/books/rosenberg/index.html.

I apologize to my colleagues who assign this book in classes that the page numbers have changed. I know from experience how frustrating this can be. My hope is that the revisions are worth the extra work they create in revising syllabi and course notes.

In 2021 a colleague suggested that I change the name of the book. She argued that the case studies in this third edition illustrate the effectiveness of the Court in producing progressive social change, with only civil rights being an illustration of judicial inefficacy. With abortion, the Court’s 1973 decision allowed the market to implement the decision, albeit unevenly, and litigation for marriage equality was a complete success. Thus, she told me, I should retitle the book The Happy Hope!

My colleague spoke too soon. The Court’s overturning of Roe v. Wade in June 2022 powerfully illustrates that she is sadly mistaken in her evaluation of the role of the Court in producing progressive social reform. There was partial success in abortion for a time, and full success with marriage equality, only because the constraints on judicial efficacy were overcome and one or more of the conditions for efficacy were present. This is an unusual occurrence, as other studies of litigation to further progressive social reform show. If my colleague had known about the Dobbs decision that would overturn Roe, and if I had kept the chapters on the environment, reapportionment, and the criminal justice system in this third edition, my colleague may have felt differently.

As I was completing this manuscript, the Supreme Court announced its decision in Dobbs v. Jackson Women’s Health Organization (2022), overturning Roe v. Wade, removing the constitutional right to abortion. The long-term effects of this decision will not be known for several years and my discussion of them is necessarily speculative and incomplete. However, at the end of chapter 6 I apply the constraints and conditions on judicial action developed in chapter 1 to analyze the likely effects of the Dobbs decision.

I have benefited from interactions with many colleagues around the country and around the world. In addition to those listed in the prefaces to the first two editions, these include Lee Fennell, Tom Keck, Joshua Koenig, Malcolm Langford, Betsey McGee, Rachel Rosenberg, and Bruce Stinebrickner. In particular, Professor Stinebrickner sent me pages of thoughtful and helpful comments after I delivered the Walker-Horizon Lecture at DePauw University and after he read the draft of the third edition.

I have also benefited from discussions during and after talks I have given. These include the Annual Lecture on Law and Social Transformation at the University of Bergen, Norway; the Walker-Horizon Lecture at DePauw University; and presentations at the University of Chicago Law School, the Colloquium on Law and Social Movements at Cornell University Law School, the Law School and Political Science Department at the University of Denver, Northwestern University Law School, Azim Premji University, Bangalore, India, the Law Faculty, University of São Paulo, Brazil, and Stanford University Law School.

Over many decades, Lee Epstein has been a wonderful mentor, an unusually supportive colleague, and a friend. After I gave a talk on marriage equality at Northwestern University Law School before publishing the second edition, Professor Epstein warned me that I was overstating the case. If I had listened to her then, I would not have needed to revise the marriage equality argument. But then there would likely not be this third edition.

In doing the research for this edition I benefited from two extraordinary research assistants, Dr. Meg Fasulo and Ms. Marissa Higdon. The fact that both decided to practice law rather than become social scientists is a loss to research and knowledge.

I thank my long-suffering editors at the University of Chicago Press, Chuck Meyers and Sara Doskow. Chuck and Sara tried every trick they knew to induce me to finish the revisions. I regret that it took me so long to complete this edition.

Finally, as always, I take responsibility for the errors. I can already hear the voices of colleagues saying, if you had only listened to me . . .

Preface to the Second Edition

I was standing in the ballroom of a hotel at the 1995 meeting of the American Association of Law Schools when a voice boomed out across the room, catching everyone’s attention: Rosenberg, the voice called out excitedly, I’ve got you! The speaker was a professor at Yale Law School from whom I had taken a class. After exchanging pleasantries, I asked him what he meant. He responded with one word: Hawaii. Expounding on that answer, he explained that the argument of this book was wrong because the Hawaiian courts were on the verge of requiring the state to issue marriage licenses to same-sex couples. Once that happened, he argued, all states would be required to recognize them under the Full Faith and Credit Clause of Article IV of the Constitution. Thus, the right to same-sex marriage was on the verge of being won nationwide through litigation. I knew, then, that I had to investigate the litigation effort to win the right to same-sex marriage.

This second edition has been a long time in coming. In part this is because the battle for same-sex marriage is constantly evolving. Each time I thought I was almost done a new event occurred, enriching and sometimes complicating the analysis. It got to the point where I would have to either set an arbitrary cutoff date or never publish. Obviously, I chose the former.

This edition contains a new section, part IV, on same-sex marriage, which includes an introduction and two chapters. Chapter 12 investigates the direct effects of litigation to win the right to same-sex marriage and chapter 13 focuses on indirect effects. The rest of the book is unchanged except, of course, for the conclusion, now chapter 14, which incorporates the lessons learned from same-sex marriage litigation. I have also added a short epilogue.

The rest of the book is unchanged because, pigheaded though I may be, I still think the argument is correct. While there has been no shortage of critics, for the most part I don’t find the criticism particularly troubling. As I note in the epilogue, I have responded to criticisms in several publications. However, for the benefit of the reader, I have posted a response to critics as well as a list of reviews on a permanent website maintained by the University of Chicago Press. It can be found at https://press.uchicago.edu/books/rosenberg/index.html.

I presented the ideas contained in these new chapters at several scholarly meetings, including the annual meetings of the Midwest Political Science Association and the Law and Society Association. As the project neared completion I presented the main argument at, and received valuable feedback from, the American Politics Workshop at the Harris School of the University of Chicago and the Law and Political Economy Workshop at Northwestern University Law School. I owe many thanks to Will Howell of the Harris School and Lee Epstein and Emerson Tiller of Northwestern. I also received more than a dozen student critiques from the Northwestern workshop. An earlier draft of the material was read by Steve Teles’s seminar at Yale Law School, and I am grateful for the feedback I received from both Professor Teles and a couple of his students.

Two colleagues, Ellen Andersen of Indiana University Purdue University Indianapolis and Andy Koppelman of Northwestern University Law School, read the penultimate draft of these new chapters and provided thoughtful and detailed comments. In their own way each pushed me to refine the argument and make it more nuanced.

I was also aided by two terrific research assistants: Chris Rohrbacher at the early stages of the project and Jennifer Esquibel at the later stages, which included the newspaper coding for part IV. Both are fine scholars and I regret not having dissuaded them from practicing law.

Finally, I owe an enormous debt of gratitude to John Tryneski of the University of Chicago Press. Waiting for me to complete this revised edition took the patience of Job. Over the many years I have worked with John, both as one of his authors and as a member of the faculty board of the University of Chicago Press, my admiration has only grown. John is not only knowledgeable but he is patient and wise. He is all an editor and colleague can be.

Finally, I need hardly state that all errors are mine. If the first edition is any indication, there will be many readers who will make the point crystal clear.

Preface to the First Edition

This is a book about the role of courts in producing major political and social change in the middle and late decades of the twentieth century. Growing up in the 1960s in a liberal New York City household, I naturally looked to the Supreme Court, identifying it with important liberal decisions in a host of fields. But study overseas, and a deepening understanding of the role of courts in other democratic systems, made me curious about the unique role of U.S. courts. Completion of a law degree further piqued my curiosity, for the idea that the Supreme Court played a fundamental role in reshaping modern American society was uncritically assumed by all. Curiosity got the best of me.

In examining the role of the courts I am neither attacking nor praising them. Rather, my aim is to understand to what extent they helped and can help produce liberal change. Both supporters and critics of judicial activism are likely to be disappointed because I do not take sides on the question of what courts ought to do. I do take a position on the usefulness of litigation to liberal reformers. And my approach is entirely independent of the individual makeup of the courts. To many in the liberal community, one lasting impact of the Reagan revolution is the rightward tilt of the judiciary through the appointment of politically conservative judges and justices. Regardless of the accuracy of this assertion, I look past individuals to the structure of the judicial system, for it is likely that sometime in the future a politically liberal president will appoint different judges and justices. And, of course, I want to understand the role of the courts in the pre-Reagan era.

This is not a book about what caused or causes liberal change. Readers looking for such a full-blown analysis will be disappointed. It is about whether the courts can or did produce such change. While I do address the broader question in two chapters, the analysis is offered to help the reader understand the role of the courts, not as a theory standing on its own.

A work of this size only comes to fruition with the help of many minds. My thinking about the courts evolved over several years and benefited enormously from the insight others offered. While many people have helped, I wish particularly to express my appreciation to Christopher Achen, Henry Brady, Annis Cats, Robert Dahl, Michael Denning, Robert M. Eisinger, Richard Gaskins, John Mark Hansen, Milton Heumann, Dan Kelliher, Donald R. Kinder, Bonnie Koenig, Kevin O’Brien, Gary Orfield, John F. Padgett, Adolph Reed, Steven Rosenstone, Stephen J. Schulhofer, Martin Shapiro, Bernard S. Silberman, Rebecca Stone, and Robin Wolpert. I received helpful and thoughtful comments via the mail from Larry Baum, Derrick Bell, Paul Burstein, Patricia K. Geschwent, Susan Hedman, Doug McAdam, Stuart Scheingold, and Lettie Wenner. Mary Becker and Cass Sunstein provided me detailed, extensive, and helpful written comments on several chapters. Several anonymous readers provided useful criticism. To those I have inadvertently omitted, I apologize.

I was extraordinarily fortunate to have worked closely at various times with J. David Greenstone, David Mayhew, and Rogers Smith. They tirelessly read and criticized repeated drafts with an attention to detail and a grasp of abstract ideas that still astound me. Their advice, although not always followed, was invaluable.

In particular, David Greenstone treated my manuscript as his special project. He spent hours over lunch, coffee, and the like offering criticisms and suggestions in his brilliant and endearing way. Even when the illness that took his life left him in pain, he somehow found the time and the energy to continue to work with me. Had he lived longer, this would have been a better book. It is with great admiration and a profound sense of loss that I dedicate the book to his memory.

Ray Lodato, Jadie Moore, Mark Nallia-Tone, Jimmie Reed Shiner Jr., Tom Thress, and Mark Zaleski provided helpful research assistance. In particular, Jimmie Reed Shiner Jr. worked long and hard hours in the search for the ever-evasive last piece of evidence and the reference I thought I had seen but couldn’t quite remember. Without his help, I would still be working on the project.

A Faculty Fellowship from the John M. Olin Foundation permitted me to take time off from teaching and administrative responsibilities, and the University of Chicago Law School provided me with an office and a congenial setting in which to complete the book.

Finally, I am tempted to take credit for all the good ideas in the following pages and blame the people mentioned above for the bad ones. Alas, honesty compels me to admit that the truth is much closer to the opposite.

Introduction

The Problem

Justice Jackson: I suppose that realistically the reason this case is here was that action couldn’t be obtained from Congress. Certainly it would be here much stronger from your point of view if Congress did act, wouldn’t it?

Mr. Rankin: That is true, but . . . if the Court would delegate back to Congress from time to time the question of deciding what should be done about rights . . . the parties [before the Court] would be deprived by that procedure from getting their constitutional rights because of the present membership or approach of Congress to that particular question. (Oral argument in Briggs v. Elliott, quoted in L. Friedman 1969, 244)

When Justice Jackson and Assistant U.S. Attorney General J. Lee Rankin exchanged these words during oral argument in a companion case to Brown, they acknowledged that the Supreme Court is part of a larger political system. As their colloquy overtly demonstrates, American courts are political institutions. Though unique in their organization and operation, they are a crucial cog in the machinery of government. But this exchange rests on a more interesting premise that is all the more influential because it is implicit and unexamined: court decisions produce change. Specifically, both Jackson and Rankin assumed that it mattered a great deal how the Court decided the issue of school segregation. If their assumption is correct, then one may ask sensibly to what extent and in what ways courts can be consequential in effecting political and social change. To what degree, and under what conditions, can judicial processes be used to produce political and social change? What are the constraints that operate on them? What factors are important and why?

These descriptive or empirical questions are important for understanding the role of any political institution, yet they are seldom asked of courts. Traditionally, most lawyers and legal scholars have focused on a related normative issue: whether courts ought to act. From the perspective of democratic theory, that is an important and useful question. Yet since much of politics is about who gets what, when, and how, and how that distribution is maintained, or changed, understanding to what extent, and under what conditions, courts can produce political and social change is important.

The answer to the questions raised above might appear obvious if it rests on Rankin’s and Jackson’s implied premise that courts produce a great deal of social change. Beginning in the mid-twentieth century progressive movements and groups advocating what I will shortly define as significant social reform have turned increasingly to the courts, petitioning them to find governmental actions unconstitutional. Starting with the famous cases brought by the civil rights movement and spreading to issues raised by women’s groups, environmental groups, gays and lesbians, advocates for criminal defendants, political reformers, and others, American courts seemingly have become important producers of progressive political and social change. Cases such as Brown (school desegregation), Roe (abortion), and Obergefell (marriage equality) are heralded as having produced major change. Further, such litigation has often occurred, and appears to have been most successful, when the other branches of government have failed to act. While officious government officials and rigid, unchanging institutions represent a real social force that may frustrate popular opinion, this litigation activity suggests that courts can interpret the Constitution to produce progressive social reform even when the other branches of government are inactive or opposed. Indeed, for many, part of what makes American democracy exceptional is that it includes the world’s most powerful court system, protecting minorities and defending liberty, in the face of opposition from the democratically elected branches.¹ Americans look to courts, then, as fulfilling an important role in the American scheme. This view of the courts, although informed by twentieth-century historical experience, is essentially functional. It sees courts, through their power of judicial review and constitutional interpretation, as powerful, vigorous, and potent proponents of progressive change. I refer to this view of the role of the courts as the Dynamic Court view.

As attractive as the Dynamic Court view may be, one must guard against uncritical acceptance. Indeed, in a political system that gives sovereignty to the popular will and makes economic decisions largely through the market, it is not obvious why courts should have the effects they assert. Maybe their attractiveness is based on something more than effects? Could it be that the self-understanding of the judiciary and legal profession leads to an overstatement of the role of the courts, a mystification of the judiciary? If judges see themselves as powerful; if the Bar views itself as influential, and insulated; if professional training in law schools inculcates students with such beliefs, might these factors inflate the self-importance of the judiciary? The Dynamic Court view may be supported, then, because it offers psychological payoffs to key actors by confirming self-images, not because it is correct.² And when this mystification is added to a normative belief in the courts as the guardian of fundamental constitutional rights and liberties—what Scheingold (1974) calls the myth of rights—the allure of the Dynamic Court view may grow.

Further, for all its obviousness, the Dynamic Court view has a well-established functional and historical competitor. In fact, there is a long tradition of legal scholarship that views the federal judiciary, in Alexander Hamilton’s famous language, as the least dangerous branch of government. Here, too, there is something of a truism about this claim. Courts, we know, lack both budgetary and physical powers. Because, in Hamilton’s words, they lack power over either the sword or the purse, their ability to produce progressive political and social change is limited. In contrast to the Dynamic Court view, the least dangerous branch can do little more than point out how the actions of the other branches of government have fallen short of constitutional or legislative requirements and hope that appropriate action is taken. The strength of this view, of course, is that it leaves Americans free to govern themselves without interference from nonelected officials. I refer to this view of the courts as weak, ineffective, and powerless as the Constrained Court view.

The Constrained Court view fully acknowledges the role of popular preferences and social and economic resources in shaping outcomes. Yet it seems to rely excessively on an idealized institutional understanding of how change occurs in American politics. But the formal institutional process doesn’t always work, for political institutions may be overly responsive to unevenly distributed resources. Bureaucratic inertia, too, can derail orderly, processional change. There may be room, then, for courts to correct the pathologies of the political process. Perhaps accurate at the founding of the political system, the Constrained Court view may miss growth and change in the American political system.

Clearly, these two views, and the aspirations they represent, are in conflict on a number of different dimensions. They differ not only on both the desirability and the effectiveness of court action but also on the nature of American democracy. The Dynamic Court view rests on the belief that constitutional rights matter and that judicial interpretations of them can further the interests of the relatively disadvantaged. In the cases mentioned in the preceding paragraphs, and others across a host of areas, litigants have successfully petitioned courts to find governmental policies and practices unconstitutional. In contrast, the Constrained Court view is skeptical that constitutional decisions lacking broad elite and popular support will make much difference to people’s lives.³ These two views are developed in greater detail in chapter 1.

The Dynamic Court view gives courts an important place in the American political system while the older view sees courts as much less powerful than other more political branches and activities. The conflict is more than one of mere definition, for each view captures a very different part of American democracy. Most Americans want courts to protect rights and defend liberties, and to defer to elected officials. Most want a robust political life and one that is just. With the glaring exception of racial discrimination, most of the time these two visions do not clash. American legislatures do not habitually threaten liberties, and courts do not regularly invalidate the acts of elected officials or require certain actions to be taken. But the most interesting and relevant cases, such as Brown, Roe, and Obergefell, occur when courts interpret the Constitution to overrule and invalidate the actions of elected officials, or order actions beyond what elected officials are willing to do. What happens then? Are courts effective producers of change, as the Dynamic Court view suggests, or do their decisions do little more than point the way to a brighter, but perhaps unobtainable future? Once again, this conflict between two deeply held views about the role of the courts in the American political system has an obvious normative dimension that is worth debating. But this book has a different aim. Relying heavily on empirical data, I ask under what conditions can constitutional decisions produce progressive political and social change. When does it make sense for individuals and groups pressing for such change to litigate? What do the answers mean about the nature of the American regime?

Political and social change are broad terms. Specifically, conflict between the two views is more sharply focused when courts become involved in progressive social reform, the broadening and equalizing of the possession and enjoyment of what are commonly perceived as basic goods in American society. What are these basic goods? Rawls (1971, 42) provides a succinct definition: Rights and liberties, powers and opportunities, income and wealth. Later he adds self-respect (1971, 440). Fleshed out, these include political goods such as participation in the political process and freedom of speech and association; legal goods such as equal and nondiscriminatory treatment of all people; material goods such as jobs, access to housing, health care, and a safe environment; and self-respect, the opportunity for every individual to lead a satisfying and worthy life. Contributions to political and social change bring these benefits to people formerly deprived of them.

Yet, so defined, social reform is still too broad a term to capture the essence of the difference between the two views. At the core of the debate lie those specific progressive social reforms that affect large groups of relatively disadvantaged people such as Blacks or workers or women or gays and lesbians; in other words, progressive policy change with nationwide impact. Litigation aimed at changing the way a single bureaucracy functions would not fit this definition, for example, while litigation attempting to change the functioning of a whole set of bureaucracies or institutions nationwide would. Progressive constitutional change affecting groups of this size, as well as altering bureaucratic and institutional practice nationwide, can be called significant social reform. So, for example, in the Brown litigation, when civil rights litigators sued the school board of Topeka, Kansas, to end school segregation, they were attempting to win a constitutional decision ending school segregation nationwide. Similarly, when abortion activists mounted a constitutional challenge to Texas’s restrictive abortion law, they were asking the Supreme Court to find a constitutional right for all women. Although the relevant boundary line cannot be drawn precisely, there is no doubt that the aim of modern litigation in the areas of civil rights, women’s rights, and the like is to win constitutional rights that produce progressive social reform.⁴

This definition of social reform is narrowly focused on what is typically called progressive social change aimed at relatively disadvantaged groups. This, of course, is a small part of what courts do. Most court cases don’t involve constitutional rights. In nonconstitutional cases, courts can influence social change broadly understood in myriad ways (Rosenberg 2005). For example, judicial decisions based on the common law can have major effects on the broader society. A prime example is product liability litigation. In the last several decades of the twentieth century and the first decades of the twenty-first century there were major judicial decisions on the safety of products ranging from asbestos to automobiles to tobacco to opioids. The results of these and other similar lawsuits affected the products Americans could buy, the prices they paid for them, and their safety. Most importantly, court decisions interpreting statutes can have a major society-wide impact. A good example of this is judicial interpretation of the Americans with Disabilities Act, which affects a great deal of behavior ranging from employment practices to building design. Similarly, judicial interpretation of the 1964 Civil Rights Act can and has helped the relatively disadvantaged. In 2020, for example, in the Bostock decision, the Supreme Court extended the prohibition of discrimination in hiring and employment in the act to gays and lesbians (discussed in chapter 12). Further, court decisions interpreting the Constitution can make an enormous difference in protecting an individual’s rights. Due process and court procedures offer at least some protection to individuals from arbitrary action. Interposing courts and set procedures between government officials and citizens has been a hard-fought stride forward in human decency.⁵ Finally, Court decisions interpreting the Constitution can also have major, negative effects, on the relatively disadvantaged. In striking down statutes, for example, judicial decisions can maintain the prestatute status quo and serve as a barrier to change.⁶ Clearly, courts have broad impact on American society.

Why, then, focus on progressive social change, on the use of constitutional litigation to further the rights of the relatively disadvantaged? There are several compelling reasons. First, the protection of individuals, in individual cases, tells us little about the effectiveness of courts in producing nationwide policy change. In addition, there is no clash between the two views in dealing with individuals. Second, decisions based on the common law can be amended and overturned by legislative action. They lack the foundational weight of constitutional rights. Third, courts acting as obstacles to significant social reform can be excluded from analysis because scholarly studies have been done on them. Studies of the role of the courts in the late nineteenth and early twentieth centuries, for example, show that courts can effectively block significant social reform. Twenty-first-century examples include the gutting of the 1965 Voting Rights Act in the 2013 Shelby County decision (discussed in chapter 2), the unleashing of unlimited corporate spending in elections in Citizens United (2010), and the overturning of Roe v. Wade in 2022 (discussed in chapter 6). Fourth, when courts interpret statutes, they are acting after both the Congress and the president have acted. This means there is broad-based political support for the underlying principle. And if judicial decisions go further than elected officials are comfortable with, they can amend or reverse the decision. Finally, and most importantly, there is good reason to focus solely on the effectiveness of courts in furthering the rights of the relatively disadvantaged because starting in the mid-twentieth century litigants have petitioned American courts with increasing frequency to do just this. Progressive groups have brought cases and adopted strategies that assume courts can be effective in furthering the rights of the relatively disadvantaged. To narrow the focus to the attempts of progressive social reformers to further constitutional rights is to concentrate on an important aspect of political activity, one that speaks to the fundamental importance of rights and to claims of American exceptionalism.⁷

The attentive reader will have noticed that I have written of courts being consequential in effecting significant social reform, of courts producing significant social reform, or of courts being of help to progressive reformers. All these formulations, which I use interchangeably throughout this book, suggest that courts can sometimes make a difference in the lives of the relatively disadvantaged. The question, then, is whether, and under what conditions, this occurs. When does it makes sense to litigate to help bring about progressive social reform? If the judiciary lacks power, as the Constrained Court view suggests, then courts cannot make much difference. Perhaps only when political, social, and economic forces have already pushed society far along the road to reform will courts have any independent effect. And even then their decisions may be more a reflection of significant social reform already occurring than an independent, important contribution to it. But if the Dynamic Court view is the more accurate, if constitutional decisions of courts are effective producers of progressive social reform, then they will be able to produce change. And if each view is partly right, if courts are effective under some conditions and not others, then I want to know when and where those conditions exist.

There is a danger that I have set up a straw man. Given the incremental nature of change in American politics, one might wonder if there is ever significant social reform in the U.S. In fact, if there is not, then asking whether and under what conditions courts produce it won’t tell me anything about courts and change. I run the danger of finding that courts don’t produce significant social reform because it doesn’t exist! Fortunately, there are numerous examples of significant progressive social reform in the United States: the introduction of Social Security, Medicaid, and Medicare; increased minority participation in the electoral process; the increasing racial integration of American institutions and society; the increasing breakdown of gender barriers and discrimination against women; growing acceptance of gays and lesbians; enhanced protection of the environment and reduction of pollution; protection for working men and women who organize to improve their lot; and so on. Clearly, then, there is significant progressive reform in the United States. And, of course, proponents of the Dynamic Court view claim that Brown, Roe, and Obergefell produced significant progressive reform.

In order to determine whether and under what conditions courts can produce significant social reform, this book concentrates on three key areas of constitutional litigation aimed at producing significant progressive social reform, civil rights, women’s rights, and the rights of gays and lesbians. These three movements and their leading symbolic cases (Brown, Roe, and Obergefell) are generally considered the prime examples of the successful use of a court-based strategy to further the interests of the relatively disadvantaged, to produce significant social reform. Proponents of the Dynamic Court view generally credit Brown with revolutionizing American race relations, Roe with guaranteeing legal abortions for all women, and Obergefell with legalizing marriage equality. Defenders of the Constrained Court view, however, might suggest that these understandings are not correct. Rather, they would point to changes in the broader political system to explain such major social and political changes. Clearly, the two views are in conflict.

It should be emphasized that an examination of civil rights, abortion, women’s rights, and gay rights avoids the pitfalls of simple case studies. Each movement spans a sufficient length of time to allow for variance. Besides the importance of these cases for politics (and for law and social science), they are cases in which claims about court effectiveness should be most clearly highlighted, cases which should most likely falsify one of the two views. If the constraints and conditions developed in the next chapter hold in these cases, they should illuminate the broader question under what conditions courts are capable of producing progressive social reform. And, for those readers who are uncomfortable with only three case studies, on a permanent website maintained by the University of Chicago Press I examine three other uses of the courts to produce significant social reform: environmental protection, reapportionment, and reform of the criminal law.⁸

In order to proceed, while not ignoring state and lower federal courts, in the civil rights and women’s rights case studies I concentrate on the U.S. Supreme Court. Like the Congress and the presidency, the Supreme Court, while not the only institution of its kind in the American political system, is the most visible and important one. It sits atop a hierarchical structure, and decisions of lower courts involving significant social reform seldom escape its scrutiny. Also, because it is the most authoritative U.S. court, it is the most concerned with public policy. Hypotheses that concern the courts and social reform must first deal with the Supreme Court and then turn to the ramifications of its decisions elsewhere in the judiciary. In the third part of the book, on marriage equality, I turn the focus largely to state courts.

There remains the question of how to deal with complicated issues of causation. Because it is difficult to isolate the effects of court decisions from other events in producing significant social reform, special care is needed in specifying how courts can be effective. On a general level, one can distinguish two types of influence courts could exercise. Court decisions might produce significant social reform through a judicial path that relies on the authority of the court. Alternatively, court influence could follow an extrajudicial path that invokes court powers of persuasion, legitimacy, and the ability to give salience to issues. Each of these possible paths of influence is different and requires separate analysis.

The judicial path of causal influence is straightforward. It focuses on the direct outcome of judicial decisions and examines whether the change required by the courts was made. In civil rights, for example, if a Supreme Court decision ordering an end to public segregation was the cause of segregation ending, then one should see lower courts ordering local officials to end segregation, those officials acting to end it, the community at large supporting it, and, most important, segregation actually ending. Similarly, with abortion, if the Court’s invalidation of state laws restricting or prohibiting abortion produced direct change, it should be seen in the removal of barriers to abortion and the provision of abortion services where requested. Proponents of the Dynamic Court view believe that the courts have powerful direct effects, while partisans of the Constrained Court view deny this. The effects of this judicial path of influence are examined in chapters 2 (civil rights), 6 (abortion), 7 (women’s rights), and 10 (marriage equality). The constraints and conditions generated in chapter 1 are applied to the findings in chapters 3, 6, 7, and 12.

Separate and distinct from judicial effects is the more subtle and complex causal claim of extrajudicial effects. Under this conception of causation, courts do more than simply change behavior in the short run. Court decisions may produce significant social reform by inspiring individuals to act or by persuading them to examine and change their views. Court decisions, particularly Supreme Court decisions, may be powerful symbols, resources for change. They may affect the intellectual climate, the kinds of ideas that are discussed. The mere bringing of legal claims and the hearing of cases may influence ideas. Courts may produce significant social reform by giving salience to issues, in effect placing them on the political agenda. Courts may bring issues to light and keep them in the public eye when other political institutions wish to bury them. Thus, courts may make it difficult for legislators to avoid deciding controversial issues. Indirect effects are an important part of court power in the Dynamic Court view. Evidence for extrajudicial effects might be found in public-opinion data, media coverage, and in public and elite action supporting significant social reform. Brown and Roe and litigation to win a constitutional right to marriage equality are widely credited with producing important extrajudicial effects, from bringing attention to civil rights and sparking the civil rights and women’s rights movement to persuading Americans that abortion and marriage equality are acceptable. Thus, in chapters 4 (civil rights), 8 (abortion and women’s rights), and 11 and 12 (marriage equality) I develop a broad range of evidence to test these claims of salience and persuasion. The provocative and counterintuitive findings of these chapters may surprise the reader.

In addition, I examine the question of whether significant social reform could possibly have occurred without court action. In chapters 5 (civil rights), 9 (abortion and women’s rights), and 12 (marriage equality), I assess a host of social, political, and economic changes that could plausibly have led to significant social reform independent of court action. Strictly speaking, the question of which view of the Court is correct, of whether the courts can produce significant social reform, does not depend on developing a full-blown theory of change. That belongs in a study of what caused change rather than a study of whether the courts caused change. However, such a logically correct approach may leave the reader cold. Thus, if it turns out that there is little evidence of the courts’ causal contributions in civil rights or abortion or women’s rights, the reader may find solace in these chapters.

Chapter 13 summarizes and concludes. The aim of this book, then, is to make sense of competing claims about the role of courts in the American political system. The findings suggest that neither view of the Court is entirely correct and that a more careful and subtle approach is needed. But surprisingly, they also suggest that one of the views of the Court is much more accurate than the other.

1

The Dynamic and the Constrained Court

What is the role of U.S. courts in producing significant social reform? When and under what conditions will U.S. courts be effective producers of significant social reform? When does it make sense for individuals and groups pressing for progressive change to litigate? What kinds of effects from court victories can they expect? Which view, the Dynamic Court view or the Constrained Court view, best captures the reality of American politics? Given the alleged success of progressive reform litigation starting in the mid-twentieth century, and Americans’ attachment to the Dynamic Court view, it is tempting to suggest that it always makes sense for groups to litigate. On the other hand, our attachment to the democratic vision of the Constrained Court, as well as a knowledge of legal history, can suggest that courts can never be effective producers of significant social reform. But always and never are claims about frequency, not conditions. To fully understand the role of the courts in producing significant social reform, we must focus on the latter.

Many scholars have turned their attention to the questions this litigation activity raises. However, their findings remain unconnected and not squarely centered on whether, and under what conditions, courts produce significant social reform. Some writing has focused on the determinants of winning court cases rather than on the effects of court decisions. In his famous 1974 article, Galanter, for example, asks why the ‘haves’ come out ahead and suggests that the resources and experience available to established and ongoing groups provide an advantage in litigation. Similarly, Handler (1978), while exploring outcomes as well as the resources available to litigants, stresses the latter too. Michael McCann (1994) emphasizes the potential mobilizing effects of litigation and its ability to raise consciousness but eschews causal claims (M. McCann 1996). While these and similar works provide interesting theories about winning cases, or avoid causal claims, that is a different question from the effects courts have on political and social change.

On the outcome side, there are numerous individual studies. Unfortunately, they tend to focus narrowly on a given issue and refrain from offering hypotheses about courts and change.¹ More self-consciously theoretical case studies have examined admittedly noncontroversial areas (Rebell and Block 1982), the need for federal pressure to improve race relations (J. Hochschild 1984), or they have suggested so many hypotheses (135 of them) as to be of little practical help (Wasby 1970, 246–66). Finally, the extensive law review literature on institutional reform either lacks evidence or focuses on individual cases with little or no attempt to generate hypotheses.² While much of this work is well done, it does not address the larger question.

In this chapter, I flesh out the two views. My aim is to make each view plausible, if not enticing. Then, critically examining evidence for each view’s plausibility, I develop a set of constraints and conditions under which courts can produce significant social reform. These suggest that both views oversimplify court effectiveness.

Structural Constraints: The Logic of the Constrained Court View

The view of courts as unable to produce significant social reform has a distinguished pedigree reaching back to the founders. Premised on the institutional structure of the American political system and the procedures and belief systems created by American law, it suggests that the conditions required for courts to produce significant social reform will seldom exist. Unpacked, the Constrained Court view maintains that courts will generally not be effective producers of significant social reform for three reasons: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and implement them.

The Limited Nature of Rights

The Constitution, and the set of beliefs that surround it, is not unbounded. Certain rights are enshrined in it and others are rejected. In economic terms, private control over the allocation and distribution of resources, the use of property, is protected (A. S. Miller 1968). Rights to certain minimums, or equal shares of basic goods, are not. Further, judicial discretion is bound by the norms and expectations of the legal culture. These two facts, believers in the Constrained Court view suggest, present a problem for litigators pressing the courts for significant social reform because most such litigation is based on constitutional claims that rights are being denied.³ An individual or group comes into a court claiming it is being denied some benefit, or protection from arbitrary and discriminatory action, and that it is entitled to this benefit or that protection. Proponents of the Constrained Court view suggest that this has four important consequences for social reformers.

First, they argue, it limits the sorts of claims that can be made, for not all social reform goals can be plausibly presented in the name of constitutional rights. For example, there are no constitutional rights to decent housing, employment, health care, or clean air, while there are constitutional rights to minimal governmental interference in the use of one’s property. This may mean that practically significant but legally irrelevant policy matters may remain beyond the purview of the court (Implementation Problems 1977, 436). Further, as Gordon (1984, 111) suggests, the legal forms we use set limits on what we can imagine as practical outcomes. Thus, the nature of rights in the U.S. legal system, embedded in the Constitution, may constrain the courts in producing progressive social reform by preventing them from hearing many claims.

A second consequence from the Constrained Court perspective is that, even where claims can be made, social reformers must often argue for the establishment of a new right, or the extension of a generally accepted right to a new situation. In welfare rights litigation, for example, the Court was asked to find a constitutional right to welfare (Krislov 1973). This need to push the courts to read the Constitution in an expansive or liberal way creates two main difficulties. Underlying these difficulties is judicial awareness of the need for predictability in the law and the politically exposed nature of judges whose decisions go beyond the positions of electorally accountable officials. First, the Constitution, lawyers, judges, and legal academics form a dominant legal culture that at any given time accepts some rights and not others and sets limits on the interpretation and expansion of rights. Judicial discretion is bound by the beliefs and norms of this legal culture, and decisions that stray too far from them are likely to be reversed and severely criticized. Put simply, courts, and the judges that compose them, even if sympathetic to social reform plaintiffs, may be unwilling to risk crossing this nebulous yet real boundary.⁴ Second, and perhaps more important, is the role of precedent and what Justice Traynor (1977, 11) calls the continuity scripts of the law. Traynor, a justice of the California Supreme Court for twenty-five years, chief justice from 1964 to 1970, and known as a judge open to new ideas, wrote of the very caution of the judicial process (1977, 7). Arguing that a judge must plod rather than soar, Traynor saw that the greatest judges proceed at the pace of a tortoise that steadily makes advances though it carries the past on its back (1977, 7, 6). Constrained by precedent and the beliefs of the dominant legal culture, judges, the Constrained Court view asserts, are not likely to act as crusaders.

Third, supporters of the Constrained Court view note, as Scheingold (1974) points out, that to claim a right in court is to accept the procedures and obligations of the legal system. These procedures are designed, in part, to make it difficult for courts to hear certain kinds of cases. As the Council for Public Interest Law (CPIL) puts it, doctrines of standing and of class actions, the so-called political question doctrine, the need to have a live controversy, and other technical doctrines can deter courts from deciding cases on the merits (1976, 355) and can result in progressive reform groups being unable to present their best arguments, or even have their day in court. Once in court, however, the legal process tends to dissipate significant social reform by making appropriate remedies unlikely. This can occur, Michael McCann (1986, 200) points out, because policy-based litigation aimed at significant social reform is usually disaggregate[d] . . . into discrete conflicts among limited actors over specific individual entitlements. Remedial decrees, it has been noted, must not confuse what is socially or judicially desirable with what is legally required (Remedial Process 1978, 855). Thus, litigation seldom deals with underlying issues and problems and is directed more toward symptoms than causes (Harris and Spiller 1976, 26).

Finally, it has long been argued that framing issues in legally sound ways robs them of political and purposive appeal (Handler 1978, 33). In the narrow sense, the technical nature of legal argument can denude issues of emotional, widespread appeal. More broadly, there is the danger that litigation by the few will replace political action by the many and reduce the democratic nature of the American polity. James Bradley Thayer, writing in 1901, was concerned that reliance on litigation would sap the democratic process of its vitality. He warned that the tendency of a common and easy resort to the courts, especially in asking them to invalidate acts of the democratically accountable branches, would dwarf the political capacity of the people (1901, 107). This view was echoed nearly a century later by Michael McCann (1986, 26), who found that litigation-prone activists’ legal rights approach to expanding democracy has significantly narrowed their conception of political action itself. Expanding the point, McCann argued that legal tactics not only absorb scarce resources that could be used for popular mobilization . . . [but also] make it difficult to develop broadly based, multi-issue grassroots associations of sustained citizen allegiance (1986, 200). In the twenty-first century Sarat and Scheingold (2006, 2) concurred, noting that grass roots organizing and conducting political campaigns to broaden support for a movement’s agenda are not activities that lawyers qua lawyers are likely to welcome or to feel well equipped to carry out. For these reasons, the Constrained Court view suggests that the nature of constitutional rights in the United States constrains courts from being effective producers of significant social reform. Thus,

Constraint I: The bounded nature of constitutional rights prevents courts from hearing or effectively acting on many significant social reform claims, and lessens the chances of popular mobilization.

Limits on Judicial Independence—the Institutional Factor

As the colloquy between Justice Jackson and U.S. attorney Rankin illustrates, reformers have often turned to courts when opposition to progressive social reform in the other branches has prevented them from acting. Thus, much significant social reform litigation takes place in the context of stalemate within, or opposition from, the other branches. For courts to be effective in such situations, they must, logically, be independent of those other branches. Supporters of the Constrained Court view point to a broad array of evidence that suggests the founders did not thoroughly insulate courts or provide them with unfailing independence.⁵

To start, the appointment process, of course, limits judicial independence. Judges do not select themselves. Rather, they are chosen by politicians, the president, and the Senate at the federal level. Presidents, while not clairvoyant, tend to nominate judges who they think share their policy preferences.⁶ Clearly, changing court personnel can bring court decisions into line with prevailing political opinion (and dampen support for significant social reform).⁷ Thus, the Constrained Court perspective sees the appointment process as limiting judicial independence.

Judicial independence requires that court decisions, in comparison to legislation, do not invariably reflect public opinion. Supporters of the Constrained Court view note, however, that Supreme Court decisions, historically, have seldom strayed far from what was politically acceptable (McCloskey 1960, 223–24; B. Friedman 2009).⁸ Rather than suggesting independence, this judicial unwillingness to often blaze its own trail perhaps suggests, in the words of Finley Peter Dunne’s Mr. Dooley, that "th’

Reviews for The Hollow Hope

[jfe16 · Rating: 3 out of 5 stars]

Review of eBookIs it possible for the courts to bring about political and social reform?Efforts to use the courts to bring about significant changes in social issues such as civil rights, abortion, and women’s rights were largely futile, asserts the author, suggesting that the courts are not the real instrument of social change. Rather, conscious deliberation and choice lie at the center of moral issues and social change.Comparing the Constrained Court [weak, ineffective, powerless] and the Dynamic Court [vigorous, powerful, proponents of change], the author suggests that change from the courts is dependent upon the bounded nature of constitutional rights, the lack of independence from other branches of the government in order to bring about significant social reform, and the lack of the tools to develop appropriate policies and implement decisions regarding social reform.A study of Brown vs. the Board of Education [1954] shows that the court’s decision had virtually no effect in actually implementing its decision. In fact, it took several actions outside of the court for school segregation to become the norm. First, Congress passed the Civil Rights Act of 1964, followed the next year by the Voting Rights Act and the Elementary and Secondary Education Act. The result of these actions was that significant progress in implementing the decisions of the Brown case took place. Following the 1954 decision, there was negligible change in desegregating schools; when, in 1965, the Department of Health, Education, and Welfare tied funding to desegregating the schools, the move to desegregate was swift. The text, supplemented with graphs, tables, and charts, also includes several appendices, case references, notes, and other references. Sections include Civil Rights, Abortion, The Environment, Reapportionment, and Criminal Law, and Same-Sex Marriage.Readers may find the limited power of the court to be a bit surprising, but there is much to consider for those interested in making changes to current policy. Recommended.

[schraubd · Rating: 5 out of 5 stars]

The title asks "Can Courts Bring About Social Change?", and Rosenberg does not pull any punches in his answer: "No". And he makes this case with reference to what is considered to be the judiciary's proudest moment: school desegregation in the wake of Brown v. Board of Education.Or should we say, the lack of desegregation. As Professor Rosenberg indicates, the most striking thing about the years following Brown is just how little impact it had. In 1954, the year Brown was decided, .001% of Black schoolchildren the south attended integrated schools (that *point* 001%, so 1 in 100,000). In 1958, that had risen to .13%, and by 1962 it was a whopping .45% -- so still, less than one-half of one percent. Desegregation didn't begin in earnest until Congress passed the Civil Rights Act and basically began dangling huge sums of money in front of local school boards as an incentive.Of course, many argue that Brown's value was symbolic or galvanizing in increasing the pressure of the civil rights movement. Obviously this sort of causal chain is harder to prove or disprove, but Rosenberg makes a game effort, examining media coverage and rhetoric in both the White and Black community to try and see just how influential Brown was (he concludes that, at least at the time of the decision, far less than commonly presumed).One does not have to follow Rosenberg all the way down his road to find his argument provocative and worth pondering. Indeed, when I assign it to my students, this is a book that always gets a rise out of everyone -- but also causes more than a few to remark that it has caused them to really rethink their beliefs and examine the law of this era with a more critical eye. That's the mark of a piece of scholarship that is justly influential, and The Hollow Hope is well-deserving of its place as one of the most important books on the American judiciary of the past 50 years.