Finding that the answer is still a resounding no, Rosenberg reaffirms his powerful contention that it’s nearly impossible to generate significant reforms through litigation. The reason? American courts are ineffective and relatively weak—far from the uniquely powerful sources for change they’re often portrayed as. Rosenberg supports this claim by documenting the direct and secondary effects of key court decisions—particularly Brown v. Board of Education and Roe v. Wade. He reveals, for example, that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation, while pro-choice activists invested too much in Roe at the expense of political mobilization. Further illuminating these cases, as well as the ongoing fight for same-sex marriage rights, Rosenberg also marshals impressive evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile.
Directly addressing its critics in a new conclusion, The Hollow Hope, Second Edition promises to reignite for a new generation the national debate it sparked seventeen years ago.
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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 such change to litigate? What kinds of effects from court victories can they expect? Which view best captures the reality of American politics? Given the alleged success of the social reform litigation of the last four decades, 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 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. Galanter (1974), for example, asks "why the 'haves' come out ahead" and suggests that the resources and experience available to established and on-going groups provide an advantage in litigation. Similarly, Handler (1978), while exploring outcomes as well as the resources available to litigants, stresses the latter too. While these and similar works provide interesting theories about winning cases, 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. More self-consciously theoretical case studies have examined admittedly non-controversial areas (Rebell and Block 1982), the need for federal pressure to improve race relations (Hochschild 1984), or have suggested so many hypotheses (one hundred and thirty-five 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. While much of this work is well done, it does not address the larger question.
In the bulk of this chapter, I flesh out the two views. My aim is to make each view plausible, if not enticing. Then, critically examining evidence for their 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 its lack of powers of implementation.
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 (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 parameters, 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. 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, adequate levels of welfare, 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" (Note 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 significant 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. Second, and perhaps more important, is the role of precedent and what Justice Traynor calls the "continuity scripts of the law" (Traynor 1977, 11). 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" (CPIL 1976, 355) and can result in social 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, 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" (Special Project 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" (Thayer 1901, 107). This view was echoed more recently by McCann, who found that litigation-prone activists' "legal rights approach to expanding democracy has significantly narrowed their conception of political action itself" (McCann 1986, 26). 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, multiissue grassroots associations of sustained citizen allegiance" (McCann 1986, 200). For these reasons, the Constrained Court view suggests that the nature of rights in the U.S. 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 significant 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.
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 will represent their judicial philosophies. Clearly, changing court personnel can bring court decisions into line with prevailing political opinion (and dampen support for significant social reform). 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). 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' supreme coort follows th' iliction returns" (Dunne 1901, 26).
In at least two important ways, the Constrained Court view suggests, Congress may constrain court actions. First, in the statutory area, Congress can override decisions, telling the courts they misinterpreted the intent of the law. That is, Congress may rewrite a provision to meet court objections or simply state more clearly what it meant so that the courts' reading of the law is repudiated. Second, although Congress cannot directly reverse decisions based on constitutional interpretations, presumably untouchable by the democratic process, it may be able to constrain them by threatening certain changes in the legal structure. A large part of the reason, of course, is the appointment process. But even without the power of appointment, the Court may be susceptible to credible threats against it. Historical review of the relations of the Court to the other branches of the federal government suggests that the Court cannot for long stand alone against such pressure. From the "Court-packing" plan of FDR to recent bills proposing to remove federal court jurisdiction over certain issues, court-curbing proposals may allow Congress to constrain courts as producers of significant social reform (Nagel 1965; Rosenberg 1985; cf. Lasser 1988).
American courts, proponents of the Constrained Court view claim, are particularly deferential to the positions of the federal government. On the Supreme Court level, the solicitor general is accorded a special role. The office has unusual access to the Court and is often asked by the Court to intervene in cases and present the government's position. When the solicitor general petitions the Court to enter a case, the Court almost invariably grants the request, regardless of the position of the parties. The government is also unusually successful in convincing the Court to hear cases it appeals and to not hear those it opposes. The solicitor general's access to the Court carries over to the winning of cases. Historically, the solicitor general (or the side the government is supporting when it enters a case as amicus) wins about 70 percent of the time (Scigliano 1971; Ulmer and Willison 1985). It appears that the federal government has both extraordinary access to and persuasive abilities with the Court (Ducat and Dudley 1985; Dudley and Ducat 1986). That does not comport with notions of independence and a judicial system able to defy legislative and political majorities. Thus, the Constrained Court view's adherents believe,
Constraint II: The judiciary lacks the necessary independence from the other branches of the government to produce significant social reform.(Continues…)
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Table of ContentsList of Tables and Figures
Preface to the Second Edition
Preface to the First Edition
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 · The Environment, Reapportionment, and Criminal Law
10. Cleaning House? The Courts, the Environment, and Reapportionment
11. Judicial Revolution? Litigation to Reform the Criminal Law
Part 4 · Same-Sex Marriage
12. You’ve Got That Loving Feeling? The Litigation Campaign for Same-Sex Marriage
13. Confusing Rights with Reality: Litigation for Same-Sex Marriage and the Counter-Mobilization of Law
14. Conclusion: The Fly-Paper Court
1. Black Children in Elementary and Secondary School with Whites: 1954–72
2. Blacks at Predominantly White Public Colleges and Universities
3. Black Voter Registration in the Southern States: Pre- and Post-Voting Rights Act
4. Laws and Actions Designed to Preserve Segregation
5. Method for Obtaining Information for Table 4.1 and Figure 4.1
6. Illegal Abortions
7. Method for Obtaining Information for Tables 8.1A, 8.1B, 8.2A, and 8.2B, and for Figures 8.1 and 8.2
8. Coding Rules and Methods for Obtaining Information for Tables 13.3, 13.4, 13.5, 13.6, and 13.7