HONORS CREDIT ESSAY

THE HOLLOW HOPE

CINDY LOPEZ
POL-3023-01S

Lopez 1

Under what conditions can the courts contribute to policy change? Many have attempted
to answer this question, however no answer has been more controversial than the one given by
Gerald Rosenberg. In The Hollow Hope (2008) written by Gerald Rosenberg, Rosenberg
theorizes that US courts can only help change policy when three structural political constraints
are overcome and one of four implementing conditions is met. In the courts and cases he
examined, the constraints were difficult to overcome and the conditions rarely met.
Consequently, Rosenberg concluded that US courts can almost never be effective producers of
social reform, the courts can work some changes in the society, but far fewer than most people
seem to think. People, not the courts, make social movements (p. 442).
Gerald Rosenberg, opens with the outline of two opposing views to explain when courts
can and cannot bring about significant social change. The Constraints Court view emphasizes
three issues on why the court cannot bring about social change (p. 10). While the Dynamic Court
view gives insight to overcoming the constraints and conditions on effectively producing
significant social reform. Rosenberg poses the question of which two models most closely
approximates the Supreme Court's achievements and failures (p.36). Rosenberg concludes that
given the two opposing views, the constrained court view dominates. Directly confronting the
key and presenting data evidence with some of the Supreme Court largest cases in efforts of
reform. For the purposes of this essay, we will strictly concentrate on abortion and womens
rights.
The Constraint Court view opens with reasons in why the American judiciary cannot
product social reform. (1) The limited nature of constitutional rights, (2) the lack of judicial
independence, and (3) lastly the judiciarys limited enforcement powers (p. 10). Significant
social reform often requires large expenditures. Judges lack the power to successfully order the
other branches to expend additional funds (p. 18). The fact that the judicial branch ultimately
lack the power to force state government (or federal government) to act (Frug 1978, 792) (as
cited by Rosenberg, 2008, p. 19) because if government refuses to act there is little courts can do
(p.19). The court holding representative is contempt is unlikely because such action sets up a
battle between the branches that effectively destroys any chance of government cooperation (p.
18). Further, the limit on government resources are no less applicable in the courtroom than
outside of it(Frug 1978, 788) ) (as cited by Rosenberg, 2008, p. 19). The court can indeed make

Lopez 2

laws and final rulings, however, without the support of political leaders, there is little incentive
for administrators to implement the courts order (p. 19).
Rosenberg also provides an opposing side to the Constraint Court view called the
Dynamic Court view. The Dynamic Court view however, does not allow for courts produce
social reform on its own. Overcoming all three constraints of the judiciarys lack of tools (p. 19),
along with the presence of at least one of the conditions is quite critical to receive the desired
significant social reform (p. 32). Rosenberg provides ways to combat the constraints, as well as
the conditions. First, overcoming constraint I, when there is ample legal precedent for change,
there is support for legal change from substantial numbers in Congress and from the national
executive, there is strong support or weak opposition from citizens and either (Condition I)
positive incentives are offered to induce compliance, (Condition II) costs are imposed to induce
compliance,(Condition III) Courts decisions allow for market implementation, or (Condition IV)
Administrators and officials crucial for implementation are willing to act and see court order as a
tool for leveraging addiction resources or for hiding behind (p.32).
While the conditions suggest that courts can be effective producers of significant social
reform, capturing part of the dynamic court view, they also suggest that this occurs only when a
great deal of change has already been made. For only when there has been political, social, and
economic change will constraints I, II, and III be overcome and at least one of the conditions be
present (p. 35). The constraint model portrays judges as well qualified policy analysts who are
willing to protect the underrepresented and whose decisions not only are obeyed but also set the
tone of future debate (p. 21-30). Rosenberg concludes that effective and significant court
ordered reform only takes place when non-judicial actors support such reform. (p. 20-36)
Rosenberg opens part two of the book with The Courts and Womens (p.173). He begins
with the womens rights movement, which began shortly after the civil rights movement. Chapter
six was solemnly dedicated to abortion history, rights, and oppositions. In the case of Roe v.
Wade in 1973, the Supreme Court found restrictive abortion laws unconstitutional (p. 173),
because they violated the due process clause of the fourteenth Amendment (p. 175). The Court
found that a pregnant women has a fundamental right of privacy in deciding whether or not to
bear a child. This case set the grounds for many years of opposing views. Presidential candidates
began to adopt abortion rights into their platforms, further dividing the American society on the

Lopez 3

issue of abortion (p.201). In conclusion to abortion rights, the Supreme Court abortion decision
show that the court has not been the unique actor claimed by proponents of the Dynamic Court
view. The abortion rights effect of social reform had little to do with the Courts decision. (p. 201)
Rosenberg presents data that show that a more abortions were conducted legally prior to Roe v.
Wade, than after the Supreme Court ruling. This information contradicts the Dynamic court view,
that rather than starting a social revolution, the Supreme Court merely acknowledged one in
progress (p. 179).
The key change in abortion practice has come in the marketing of health care services for what Roe really created was legal space for abortion clinics (pp. 195-99). Rosenberg argues
that before Roe v. Wade there was slight opposition to abortion, however, post Roe oppositions
increased in hopes to overturn Roe v. Wade. (p. 183). Adding that if Roe were overturned the only
change that would come about would be the disappearance of the clinics. Rosenberg concludes
that the Courts impact has been negligible at best and counterproductive at worst. He speaks of
the lack of judicial and extra-judicial effects of Court decisions (p.265) saying that the court is
far less responsible for the change that occurred than most people think (p. 201) and that the
growth of right to life forces in the wake of Roe suggest that one result of litigation to
produce significant social reform is to strengthen the opponents of such change (p. 342).
Rosenberg goes beyond the assertion that litigation strategies rarely if ever produce
significant change and are often counterproductive (pp. 339-42). Rosenberg highlights how the
rate of legal abortion rose more dramatically the two years before. While briefly mentioning that,
after Roe, forty-six state laws were invalidated for being unconstitutional. Nonetheless, he argues
(1) significant social reform only takes place when non-judicial entities support such reform (p.
20-36) and (2) that there was slight opposition to abortion before the courts ruling. It is worth
noting that public opinion on abortion has changed little over the past twenty years (pp. 182-89)..
It may seem that majority of Americans supported abortion before Roe, however, after the
1973 decisions, many pro-choice activists simply assumed they had won and stopped their prochoice activity. The result, of course, was that pro-choice forces abandoned the political arena to
pro-life forces - and then acted surprise when pro-life forces won important electoral victories.
The Courts did not create the broad abortion rights, rather the pro-life activists working at the
grass roots level all across America did (Carter, 1992). With the overwhelming opposition, there

Lopez 4

is a slight chance that abortion could have ever been overcame without Roe. Therefore, the court
ruling was crucial to cause the intense social reform that Roe brought. It is wishful thinking,
though, to imagine that, had they simply stayed out of court, abortion proponents could have
slipped the issue by the right-to-life contingent for much longer.
In an article, How Now, Brown? (1992) By David Kirp, Kirp argue that for nearly a
decade before Roe was decided, abortion had been on the nations political agenda, and eighteen
states had liberalized their laws. Adding, that even before the ruling on Roe was decided,
Americans had already come to accept the rightness of leaving the abortion decision with the
woman (Kirp, 1992). Rosenberg is contending that this liberalization would have continued
unabated without a Supreme Court ruling-and that the right to-life movement would not have
been spurred if proponents of abortion had proceeded through the slower channels of politics.
Kirp concludes that the winds of liberalization would not have reach all regions of the country,
and, politically, they would stopped well short of leaving decisions about the fate of a fetus in the
hands of the mother: for that, a judicial decree or federal law was needed (Kirp, 1992)
Neal Devins in Judicial Matters (1992), argues against Rosenberg, he emphasizes that
indeed the Courts do matter. Sometimes the threat of judicial action prompts either settlement or
legislative initiative. It may be that these influences sometimes result in unwise policy decision
and sometimes exceed their proper judicial role in our system and separate powers, but they are
judicial influences nonetheless(p. 1066-1068, Devins, 1992). Courts are given inadequate credit
for what they do, as well as too much blame for what they do not do. While Rosenberg does a
masterful job of showing that courts do not effect change alone, he goes too far in refusing to
recognize that the judiciary is actively involved in a partnership with elected government. In
some respects, Rosenbergs problem is one of articulation, not analysis (Rosenberg, p. 30-36).
Rosenbergs conclusion that social change can rarely be advance through court action is absolute,
and therefore flawed (p. 1066-1068, Devins, 1992). For Rosenberg, it does not matter whether
the court in power is the Warren court of the 1960s or the Rehnquist Court of the 1990s. The
hollow hope completely underestimates the sweep of the judiciarys contribution to social reform
(p. 1066-1068, Devins, 1992).
Matthew Hall in The Hollow Hope Review Of the University of Chicago Press (2009),
Argues (to the second addition of The Hollow Hope) that despite the fact of Rosenbergs

Lopez 5

argument that the distinction between these various modes of failure matter little to the
proponents of social reform; if most litigation strategies fail, it does not matter how they fail.
Whether rulings are reversed, ignored, or never issued in the first place, reformers would be
better advised not to pursue a litigation strategy. But this perspective neglects many practical
insights into the role of courts in society. First, the shifting standard of success tends to obscure
the very real changes caused by courts, such as same-sex marriage in Massachusetts. Second, the
judicial will standard confuses the difference between what courts want to do and what they can
do. Third, Rosenbergs conclusion discourages reformers from pursuing a court-centered
approach in situations when litigation may well be the best route to success (Rosenberg, p. 350).
It may be difficult to convince the justices to support reform, but it would also be difficult to
convince legislators.
The Response
After much criticism to The Hollow Hope, Rosenberg responded by saying that majority
of the criticism appears ideologically driven. Adding readers who support desegregation and
access to legal abortion, for example, invariably respond negatively and sometimes angrily to my
findings questioning the importance and efficacy of Brown and Roe. While the argument of The
Hollow Hope is not immune to criticism, criticisms driven by ideology merely demonstrate that
people disagree. They offer little guidance in sorting out how to study courts and social change,
and how to decide between competing claims about the importance of the courts. Rosenberg
emphasizes that he is in no way trying to reargue the book, but rather focus on some of the most
common criticisms that have been offered. Rather he offers more empirical work combined with
historical sensitivity, methodological awareness, and broader normative (Rosenberg 2008, Web).
His response for the Courts Matter arguments, his take on this is that many critics have
misread the book as denying the importance of courts and law, as arguing that courts are
irrelevant to social change and that court decisions have no impact on society. Rosenberg argues
that this is emphatically not the argument of the book, and that such claims are preposterous. He
adds Of course courts matter! Of course courts influence social change. And they do so in many
different ways. Judicial decisions based on the common law can have major effects on the
broader society. (Rosenberg 2008, Web).

Lopez 6

He adds that Roe produced significant social reform in abortion because at the time of the
decision all three constraints were weakened and one of the conditions for judicial efficacy, the
ability of the market to implement the decision, was present. He adds that Roe was successful for
a number of reasons, including the large increase of abortion the year before the Courts opinion.
Suggesting that without both elite and public support, and the ability of doctors and privately
owned clinics to provide abortions, Roe would have not produced much change. But none of this
denies that Roe produced significant social reform. To the argument of Asking too much of the
Courts. According to this criticism, it is unfair or naive to expect courts to be able to bring about
nationwide change (Rosenberg 2008, Web). Adding that the book isnt asking too much of courts
but rather social reform litigators. The argument of The Hollow Hope does not criticize courts. It
does criticize reformers for litigating when the Court is constrained from helping them when
conditions for overcoming the constraints are not present (Rosenberg 2008, Web).
He also gives insight to what would happen if the Supreme Court overturns Roe. As a
worst-case scenario from the point of view of pro-choice activists, it would predict only a modest
decline in the number of legal abortions over the long run. This is largely because there is a
demand for the service. While some conservative states are likely to ban abortion except where
necessary to save the life of the pregnant woman, many other states will act to legalize the status
quo. In addition, there would likely be a political backlash against antiabortion elected officials
that could bring to power officials more supportive of abortion choice (Rosenberg 2008, Web).

Work Cited

Lopez 7

Carter, Stephen L., and Gerald N. Rosenberg. "Do Courts Matter?" Michigan Law Review 90.6
(1992): 1216-224. UTSA Library Database, Legal Collection.
Devins, Neal, and Gerald N. Rosenberg. "Judicial Matters." California Law Review 80.4 (1992):
1027. UTSA Library Database, Legal Collection.
Hall, Matthew Eric Kane. "The Hollow Hope Review." JSTOR 43.4 (2009): 941-43. UTSA
Library Database, Legal Collection.
Kirp, David L., and Gerald Rosenberg. "How Now, Brown?" The Nation 254.21 (1992): 757-59.
UTSA Library Database, Legal Collection.
Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring about Social Change? Chicago: U of
Chicago, 2008. Print.
Rosenberg, Gerald. "Ideological Preferences and Hollow Hopes." Response to Critics of The
Hollow Hope: Can Courts Bring About Social Change? By Gerald N. Rosenberg. Chicago: U of
Chicago, 2008, n.d. Web.