Gerald N. Rosenberg teaches both law and political science at the University of Chicago and is a member of the Washington, D.C., Bar.

The University of Chicago Press, Chicago 60637

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ISBN-13: 978-0-226-72671-7 (paper)

ISBN-13: 978-0-226-72668-7 (ebook)

ISBN-10: 0-226-72670-3 (cloth)

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Library of Congress Cataloging-in-Publication Data

Rosenberg, Gerald N.

The hollow hope : can courts bring about social change? / Gerald N. Rosenberg.—2nd ed.

p. cm.

Includes bibliographical references and index.

ISBN-13: 978-0-226-72670-0 (cloth : alk. paper)

ISBN-13: 978-0-226-72671-7 (pbk. : alk. paper)

ISBN-10: 0-226-72670-3 (cloth : alk. paper)

ISBN-10: 0-226-72671-1 (pbk. : alk. paper)  1. Courts—United States.  2. Political questions and judicial power—United States.  3. Sociological jurisprudence.  4. Civil rights—United States.  5. Women’s rights—United States.  6. Social change.  I. Title.

KF8700.R66 2008

340’.115—dc22

2007038915

The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

Gerald N. Rosenberg

The Hollow Hope

Can Courts Bring About Social Change?

Second Edition

The University of Chicago Press

Chicago and London

American Politics and Political Economy

A series edited by BENJAMIN I. PAGE

To the Memory of My Parents,

MILTON H. AND BEATRICE N. ROSENBERG

and for

BONNIE L. KOENIG

With the breath, smiles, tears, of all my life.

—Browning

Contents

List of Tables and Figures

Preface to the Second Edition

Preface to the First Edition

Introduction

1. The Dynamic and the Constrained Court

Part 1 • Civil Rights

Introduction

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

Introduction

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

Introduction

10. Cleaning House? The Courts, the Environment, and Reapportionment

11. Judicial Revolution? Litigation to Reform the Criminal Law

Part 4 • Same-Sex Marriage

Introduction

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

Epilogue

Appendices

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

Case References

Notes

References

Index

Tables and Figures

Tables

2.1. Black Children in Elementary and Secondary School with Whites, 1954–72

2.2. Desegregated School Districts, by Primary Source of Intervention, and by Year of Greatest Desegregation, 1901–74

2.3A. Blacks at Southern, Predominantly White Public Colleges and Universities, 1963, 1965, 1966

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

2.4. Black Voter Registration in the Southern States, 1940–70

3.1. Federal Funds for Public Elementary and Secondary Schools in 17 Southern and Border States, 1963–72

3.2. Percentage of Public School Budgets Received from Federal Funds in Southern and Border States, 1963–71, and Percentage of Blacks in School with Whites, 1964–65 and 1972–73

3.3. Selected Southern School Districts by Extent of Desegregation and Amount of Federal Funds Received, 1967–70

4.1. Magazine and Press Coverage of Civil Rights, 1940–65

4.2. Civil Rights Demonstrations, 1940–65

4.3. Income for Civil Rights Organizations, 1940–65

4.4. NAACP and CORE Membership, 1940–65

6.1. Legal Abortions, 1966–85

6.2. Percentage of Hospital Providers Providing Abortions, 1973–85

6.3. Percentage of Women Going Out of State of Residence to Obtain Abortions

6.4. Number of Abortion Providers, 1973–85

6.5. Facilities That Provide Abortions, 1973–85

7.1. The Earnings Gap

8.1A. Magazine and Press Coverage of Abortion, 1940–76

8.1B. Magazine Coverage of U.S. Supreme Court Abortion Decisions, 1973–76

8.2A. Magazine and Press Coverage of Women’s Rights, 1940–76

8.2B. Magazine Coverage of the Women’s Liberation Movement, 1968–76

8.3. Membership in the National Organization for Women and the National Abortion Rights Action League, 1967–85

10.1. Magazine and Press Coverage of the Environment, 1965–85

13.1. Key Events in the Movement for Same–Sex Marriage, 1993–2007

13.2. Reader’s Guide to Periodical Literature, 1990–2005

13.3. New York Times Entries Mentioning Same-Sex Marriage, Gay Marriage or Homosexual Marriage, by Year, 1980–2004

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

13.5. New York Times Entries Mentioning Same-Sex Marriage, Gay Marriage or Homosexual Marriage, by Year and Content, 1980–2004

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

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

13.8. Should Same-Sex Marriages be Recognized by Law?, 1989–2005 (percentages)

13.9. Should Civil Unions be Recognized by Law? Gallup, 2000–2004 (percentages)

13.10. Percentage of Americans Willing to Hire Gay Men and Lesbians for Various Occupations, 1977–2005

App. 6, A.1. Estimates of Illegal Abortions

Figures

2.1. Percentage of Southern Black Schoolchildren Attending School with Whites

2.2. Black Voter Registration in the Southern States

4.1. Magazine Coverage of Civil Rights, 1940–65

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

4.3. Civil Rights Demonstrations, 1940–65

6.1. Legal Abortions, 1966–85

8.1. Magazine Coverage of Abortion, 1940–76

8.2. Magazine Coverage of Women’s Rights, 1940–76

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 due to the fact that 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 Web page maintained by the University of Chicago Press. It can be found at http://www.press.uchicago.edu/books/Rosenberg/.

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 & 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, he is also 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 to particularly 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, Martin Shapiro, Stephen J. Schulhofer, 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 astounds 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 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 Friedman 1969, 244)

When Justice Jackson and Assistant U. S. Attorney General J. Lee Rankin exchanged these thoughts 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 of key importance.

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. In the last several decades movements and groups advocating what I will shortly define as significant social reform have turned increasingly to the courts. Starting with the famous cases brought by the civil rights movement and spreading to issues raised by women’s groups, environmental groups, political reformers, and others, American courts seemingly have become important producers of political and social change. Cases such as Brown (school desegregation) and Roe (abortion) 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 which may frustrate popular opinion, this litigation activity suggests that courts can produce significant 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. Americans look to activist courts, then, as fulfilling an important role in the American scheme.¹ This view of the courts, although informed by recent historical experience, is essentially functional. It sees courts as powerful, vigorous, and potent proponents of 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 through the market, it is not obvious why courts should have the effects it asserts. Maybe its 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 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 political and social change is limited. In contrast to the first view, the least dangerous branch can do little more than point out how actions 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 non-elected 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 a formal-process understanding of how change occurs in American politics. But the formal process doesn’t always work, for social and political forces may be overly responsive to unevenly distributed resources. Bureaucratic inertia, too, can derail orderly, processional change. There is room, then, for courts to effectively 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 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. We Americans want courts to protect minorities and defend liberties, and to defer to elected officials. We want a robust political life and one that is just. 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 and Roe, occur when activist courts 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 courts produce 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 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 (Rawls 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 non-discriminatory treatment of all people; material goods; 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 lies those specific social reforms that affect large groups of people such as blacks, or workers, or women, or partisans of a particular political persuasion; in other words, 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. 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 to end school segregation nationwide, not just in the school systems in which the complaints arose, they were attempting to use the courts to produce significant social reform. Similarly, when abortion activists mounted a constitutional challenge to restrictive abortion laws, aimed at affecting all women, they were attempting to use the courts to produce significant social reform. 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 produce significant social reform.³

This definition of significant social reform does not take much note of the role of the courts in individual cases. Due process and court procedures offer at least some protection to the individual from arbitrary action. Interposing courts and set procedures between government officials and citizens has been a hard fought-for and great stride forward in human decency.⁴ However, 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.

There is good reason to focus solely on the effectiveness of courts in producing significant social reform. Other possibilities, such as courts acting as obstacles to significant social reform, can be excluded because adequate work has 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.⁵ Further, since the mid-twentieth century litigants have petitioned American courts with increasing frequency to produce significant social reform. Reform-minded groups have brought cases and adopted strategies that assumed courts could be consequential in furthering their goals. To narrow the focus is to concentrate on an important aspect of recent political activity.

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 reformers. All of these formulations suggest that courts can sometimes make a difference. The question, then, is whether, and under what conditions, this occurs. When does it makes sense to litigate to help bring about significant 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 courts are effective producers of significant 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 social reform in the U.S.: 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; 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 social reform in the U.S. And, of course, proponents of the Dynamic Court view claim that both Brown and Roe produced significant social reform.

In order to determine whether and under what conditions courts can produce significant social reform, the bulk of this book concentrates on two key areas of significant social reform litigation, civil rights and women’s rights. These two movements and their leading, symbolic cases (Brown and Roe) are generally considered the prime examples of the successful use of a court-based strategy to produce significant social reform. Proponents of the Dynamic Court view generally credit Brown with having revolutionized American race relations while Roe is understood as having guaranteed legal abortions for all. Defenders of the Constrained Court view, however, might suggest that neither interpretation is 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, and women’s rights avoids the pitfalls of simple case studies. Each movement spans a sufficient length of time to allow for variance. Covering decades, the debate over these issues has been affected by political, social, and economic variables. 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 studies, they should illuminate the broader question under what conditions courts are capable of producing significant social reform. And, for those readers who are uncomfortable with only three case studies, in the final chapters I expand the coverage to examine briefly three other modern uses of the courts to produce significant social reform.

In order to proceed, while not ignoring state and lower federal courts, I will 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.

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 extra-judicial 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 straight-forward. 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), and 7 (women’s rights). The constraints and conditions generated in chapter 1 are applied to the findings in chapters 3, 6, and 7.

Separate and distinct from judicial effects is the more subtle and complex causal claim of extra-judicial 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 persuading them to examine and change their opinions. 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 extra-judicial effects might be found in public-opinion data, media coverage, and in public and elite action supporting significant social reform. Both Brown and Roe are universally credited with producing important extra-judicial effects, from bringing attention to civil rights and sparking the civil rights and women’s rights movement to persuading Americans that abortion is acceptable. Thus, in chapters 4 (civil rights) and 8 (abortion and women’s rights) I develop a broad range of evidence to test these claims of salience and persuasion. The provocative and counter-intuitive 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) and 9 (abortion and women’s rights), 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 two chapters.

Finally, in chapters 10 and 11, I briefly assess the applicability of the constraints and conditions developed in chapter 1 to environmental litigation, reapportionment, and reform of the criminal law. Chapter 12 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 powerful 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 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.¹ 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.² 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.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, 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.⁴ 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.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 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).⁶ 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).⁷ 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).⁸

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.⁹ 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.¹⁰ The government is also unusually successful in convincing the Court to hear cases it appeals and to not hear those it opposes.¹¹ 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.

Implementation and Institutional Relations

For courts, or any other institution, to effectively produce significant social reform, they must have the ability to develop appropriate policies and the power to implement them. This, in turn, requires a host of tools that courts, according to proponents of the Constrained Court view, lack. In particular, successful implementation requires enforcement powers. Court decisions, requiring people to act, are not self-executing. But as Hamilton pointed out two centuries ago in The Federalist Papers (1787–88), courts lack such powers. Indeed, it is for this reason more than any other that Hamilton emphasized the courts’ character as the least dangerous branch. Assuaging fears that the federal courts would be a political threat, Hamilton argued in Federalist 78 that the judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments (The Federalist Papers 1961, 465). Unlike Congress and the executive branch, Hamilton argued, the federal courts were utterly dependent on the support of the other branches and elite actors. In other words, for Court orders to be carried out, political elites, electorally accountable, must support them and act to implement them. Proponents of the Constrained Court view point to historical recognition of this structural fact of American political life by early Chief Justices John Jay and John Marshall, both of whom were acutely aware of the Court’s limits.¹² President Jackson recognized these limits, too, when he reputedly remarked about a decision with which he did not agree, John Marshall has made his decision, now let him enforce it.¹³ More recently, the unwillingness of state authorities to follow court orders, and the need to send federal troops to Little Rock, Arkansas, to carry them out, makes the same point. Without elite support (the federal government in this case), the Court’s orders would have been frustrated. While it is clear that courts can stymie change (Paul 1960), though ultimately not prevent it (Dahl 1957; Nagel 1965; Rosenberg 1985), the Constitution, in the eyes of the Constrained Court view, appears to leave the courts few tools to insure that their decisions are carried out.

If the separation of powers, and the placing of the power to enforce court decisions in the executive branch, leaves courts practically powerless to insure that their decisions are supported by elected and administrative officials, then they are heavily dependent on popular support to implement their decisions. If American citizens are aware of Court decisions, and feel duty-bound to carry them out, then Court orders will be implemented. However, proponents of the Constrained Court view point out that survey data suggest that the American public is consistently uninformed of even major Supreme Court decisions and thus not in a position to support them (Adamany 1973; Daniels 1973; Dolbeare 1967; Goldman and Jahnige 1976). If the public or political elites are not ready or willing to make changes, the most elegant legal reasoning will be for nought.

This constraint may be particularly powerful with issues of significant social reform. It is likely that as courts deal with issues involving contested values, as issues of significant social reform do almost by definition, they will generate opposition. In turn, opposition may induce a withdrawal of the elite and public support crucial for implementation. Thus, proponents of the Constrained Court view suggest that the contested nature of issues of significant social reform makes it unlikely that the popular support necessary for implementation will be forthcoming.

A second claim made by proponents of the Constrained Court view about courts effectively implementing decisions is that the legal system is a particular type of bureaucracy that has few of the advantages and many of the disadvantages of the ideal Weberian type. For example, important components of the Weberian bureaucracy include a hierarchical command structure, a clear agenda, little or no discretion at lower levels, stated procedures, job protection, positions filled strictly by merit, area specialization, and the ability to initiate action and follow-up. While on the surface the U.S. judicial system is hierarchical, has stated procedures, and provides job protection, closer examination under a Constrained Court microscope complicates the picture. For example, although orders are handed down from higher courts to lower ones, there is a great deal of discretion at the lower levels. Decisions announced at the appellate level may not be implemented by lower-court judges who disagree with them or who simply misunderstand them. Similarly, procedures designed to prevent arbitrary action may be used for evasion and delay. Further, unlike the ideal bureaucratic type, courts lack a clear agenda and any degree of specialization. Rather, judges and clerks go from case to case in highly disparate fields. This means that area expertise and planning, often crucial in issues involving significant social reform, are seldom present, making it uncertain that the remedy will be appropriate to the problem. In terms of initiation and follow-up, the nature of the legal bureaucracy puts barriers in the way of courts. For example, courts cannot initiate suits but must wait for litigants to approach them. Because stated procedures must be followed, because courts have small staffs, and because the legal system requires individuals rather than courts to initiate proceedings, appellate courts may never know whether their decisions have been implemented. Follow-up is difficult because it may be years by the time appellate judges discover an incident (or pattern) of non-implementation, through a case working its way up to them. Finally, the insulated above politics position of courts limits judges in cutting deals and actively politicking in support of a decision. The distance between the ideal Weberian bureaucracy and the American judiciary is so large, proponents of the Constrained Court view might argue, that even if courts actively promote significant social reform, they cannot easily achieve the results their decisions command.¹⁴

Through the eyes of the Constrained Court view, the decentralized nature of the judicial system may constrain courts from producing significant social reform for several reasons. In a nutshell, the structure of courts opens the possibility for bias and misinterpretation to influence lower-court decisions. Further, the entrepreneurial nature of many lawyers makes it difficult for groups seeking significant social reform through the courts to present a coherent strategy. And the nature of the legal bureaucracy makes delay endemic. These claims merit brief attention.

The American judicial system vests considerable discretion in lower-court judges. Only rarely do appellate courts issue final orders. In almost all cases, they remand to the trial court for issuance of the final order. This leaves lower-court judges with a great deal of discretion. The objective judge will conscientiously attempt to follow the higher court’s orders. However, misinterpretation of those orders, especially if they are vague, is possible. Further, the biased judge has a myriad of tools with which to abuse discretion. These include the delay endemic to legal proceedings (CPIL 1976, 355), narrow interpretation, and purposeful misinterpretation. In this kind of case, litigants must follow procedure and re-appeal the case to the higher court for help, further delaying change.

This structural aspect of the American judicial system, those in the Constrained Court camp argue, may pose a particular problem for litigants seeking significant social reform. Bias and misinterpretation aside, it may be difficult for groups seeking reform to present a coherent strategy. Access to the legal system can be gained in any one of hundreds of courts (in the federal system) by any one of hundreds of thousands of lawyers. In particular, as Cowan (1976), Tushnet (1987), and Wasby (1983, 1985) note, interest groups planning a litigation strategy may find themselves faced with a host of cases not of their doing or to their liking. There is no way to prevent other lawyers, individuals, and groups from filing cases. And if these cases are not well-chosen and well-argued, they may result in decisions that wreak havoc with the best-laid plans. Thus, groups are sometimes on the defensive, forced to disassociate themselves from the legal arguments of purported allies and sometimes even to oppose them.

Although in practice federal judges have life tenure, this does not mean they are free from constraints. In asking for significant social reform, litigants are asking judges to reform existing institutions. However, judges may be unwilling to take on this essentially non-judicial task. To the extent that lower-court judges are part of a given community, ordering massive change in their community may isolate them and threaten the respect of the court. Also, the judicial selection process for lower federal court judges, is designed to select people who reflect the mores and beliefs of the community in which the court sits (Chase 1972). Therefore, adherents to the Constrained Court view argue, it is unlikely that lower-court judges will be predisposed to support significant social reform if the community opposes it.

The opportunity for delay that is built into the judicial bureaucracy constrains courts in several ways. First, through constant appeals, motions, and the use of other procedures, parties under court order to implement significant social reform can gain time. For example, when threatened with a lawsuit over prison conditions, a state corrections director replied: a lawsuit is twenty-six months away. We could buy some time (Cooper 1988, 259). Second, parties opposed to change can initiate their own lawsuits, using the courts to challenge and invalidate legislative, administrative, or other judicial action. In the environmental field both Wenner (1982, 1988) and Hays (1986) note that industry has systematically relied on courts to delay change. For those opposed to reform, delay can allow for changes in political and economic conditions, leading to reversals of the ordered reform. Thus, the opportunity for delay inherent in the legal bureaucracy, believers in the Constrained Court view argue, makes courts poor institutions for producing significant social reform.

A further obstacle for court effectiveness, assert believers in the