Volume 1, No. 10 (December, 1991), pp. 139-142
THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? by Gerald
N. Rosenberg. Chicago: University of Chicago Press, 1991.
Reviewed by Lee Epstein, Washington University-St. Louis
Since 1987, I have noticed a dramatic increase in public
curiosity about and interest in the U.S. Supreme Court. Though I
do not have data to support this assertion, I do know that over
the past four years I have received more phone calls, inquiries,
and so forth about the Court from more diverse sources than ever
before. Some of this interest concerned specific Court rulings
(TEXAS V. JOHNSON was a particularly hot case); but, mostly it
centered on Reagan's and Bush's nominations to the Court, espe-
cially those of Bork and Thomas. Obviously, what I experienced
was not at all unique. Who could have ever imagined a Supreme
Court nomination proceeding beating out the baseball playoffs in
the television ratings game!
Why all of this interest in the Court? To be sure, the Thomas
nomination contained all the ingredients necessary to pique the
public; interest here was more closely akin to that of the
"Who Shot Laura Palmer" episode of "Twin
Peaks" than of the constitutional law seminars provided by
the Bork hearings. But even so, these nomination proceedings have
caused the public to think more about the Court than at any point
in recent memory; that "thinking," it strikes me, is
grounded in a rather universal assumption: it "matters"
who sits on the Court and, more general- ly, that the Court
itself "matters." This is something the scholarly
community has accepted for years; the public outcry over and
Senate rejection of Bork, in particular, indicate that we are not
alone.
In the much-awaited THE HOLLOW HOPE, Gerald Rosenberg questions
that basic assumption. He finds that it is largely wanting.
Following his argument to its logical conclusion, it does not
matter who sits on the Court because the Court itself does not
matter much. To put it more centrally in terms of this study, the
answer to the question raised in the subtitle of his book (Can
courts bring about social change?) is NO. The question we, the
scholarly community, need to consider is whether Rosenberg
provides sufficient evidence to support this rather astonishing
assertion. Before I provide my assessment, let me give you a
better sense of the book's theoretical under-pinnings and its
design.
Given its anything-but-conventional conclusion, THE HOLLOW HOPE
starts in a rather conventional way. In the Introduction and
first chapter, Rosenberg lays out two distinctly conflicting, and
familiar perspectives on the Court's ability to generate
significant social change and the conditions under which it can
do so. The first, which he calls the Constrained Court view,
generally maintains that courts will rarely be able to produce
social change of any magnitude because of three important con-
straints:
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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 (p.13).
Constraint II. The judiciary lacks the necessary independence
from the other branches of government to produce significant
social reform (p.15).
Constraint III. Courts lack the tools to readily develop
appropriate policies and implement decisions ordering significant
social reform (p.21)
In contrast, the Dynamic Court view asserts that courts are
effective "producers" of social change, and, more to
the point, they "can be more effective than other
governmental institutions" (p.22). This is because courts
have advantages over the other branches:
their members, free from the electoral connection, can "act
in the face of public opposition" and, thus, are in a unique
position to generate social change;
those litigants entering their doorsteps -- especially groups
desiring social change, who are disadvantaged in the electoral
and legislative process -- enjoy access that depends neither on
"connections nor position" (p.23); and
their decisions have indirect ways of producing social change not
necessarily enjoyed by those emanating from the other branches;
for example, they can serve to set the agendas of the other
branches and they can "educate" Ameri- cans.
Rosenberg could have left it at this and gone about his study. He
does not. Rather, viewing the two perspectives as too simple, he
devises a framework that specifies the conditions under which
courts could effectively produce social change:
1. Overcoming Constraint I (there exists ample precedent for
change); AND,
2. Overcoming Constraint II (there is support for change from
substantial numbers in Congress and from the executive); AND,
3. Overcoming Constraint III (there is either support from some
citizens, or at least low levels of opposition from all
citizens); AND, at least one of four conditions is met: a.
Positive incentives are offered to induce compli- ance
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b. Costs are imposed to induce compliance c. Court decisions
allow for market implementation d. Administrators and officials
crucial for implemen- tation are willing to act and see court
orders as a tool for leveraging additional resources for hiding
behind (p. 36, with some paraphrasing).
The balance of the book (about 230 pages) applies this framework
to the areas of civil rights, abortion, and women's rights;
Rosenberg also looks at the environment, reapportionment, and
criminal law, though in considerably less detail. His modus
operandi, thus, is the intensive case study, with mounds of data
drawn from primary and secondary sources.
To provide you with detailed descriptions of Rosenberg's specific
conclusions would perform an injustice to him. No fair way exists
to encapsulate the monumental amount of work he put into this
research. Rather, let me give you the basic punch lines. The
first is that the framework depicted above "works." For
example, Rosenberg argues that pro-choice groups were able to
achieve their significant victory in ROE V. WADE because, in the
lingo of the framework, the conditions existed for overcoming the
constraints. More specifically, legal precedent was sufficient;
elites desired legalized abortion and faced little federal
opposition in their quest to achieve that goal; and, the public
was increasingly supportive. So too, those arguing for expanded
abortion rights were "lucky"; one of the four
conditions (listed above) "necessary for change, a market
free to implement, was present" (p.189). A second, and
related finding is that it is more typically the case that the
constraints outweigh the condi- tions for overcoming them. In
Rosenberg's word's:
The findings show that, with the addition of the four condi-
tions, the constraints derived from the Constrained Court view
best capture the capacity of courts to produce significant social
reform. This is the case because, on the most fundamental level,
courts depend on political support to produce such reform
(Constraint III) (p.336).
Put in less jargonized terms, U.S. courts "can almost never
be effective producers of significant social reform"
(p.338).
It seems almost unnecessary for me to point out the implica-
tions of such a conclusion, but let me name just two. Public
interest law groups that have long relied on litigation to
achieve policy goals ought start looking elsewhere. Scholars who
have long viewed the Court as a place where significant change
can occur ought start rethinking some basic assumptions about the
institution.
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The $64k question, however, is whether Rosenberg is correct.
I have no doubt that the scholarly and practicing community will
engage in vigorous debate over the "right" answer to
this question. Before I present my own response, I owe it to
readers of this review to explain the perspective I brought to my
reading of the text. As part of a cohort trained less in a
"Dahlesque" approach (courts legitimate majoritarian
interests) and more in the Casper/Vose school (courts protect
minority rights), not only did I read THE HOLLOW HOPE closely but
I sought to identify any possible weakness. This is not to
suggest I wanted to prove Rosenberg wrong; however, I read it
with the eye of skeptic.
This noted, let me give you my bottom line first: to be sure, I
have some quibbles with the study, but they do not significantly
detract from Rosenberg's findings. I believe Rosenberg has
presented sufficient, even abundant, evidence to support his
findings. Why did I reach this conclusion?
One reason lies with the areas on which Rosenberg focused: civil
rights and abortion/women's rights. These were, in my view,
outstanding choices because they are areas on which schol- ars
largely agree the Court had a major impact. Had he picked issues
on which its effect was murkier, his conclusions would be far
less important and far more vulnerable to attack. But, at least
on this score, he is virtually unassailable (i.e., if the Court
was ineffective in producing social change in the areas of civil
rights and abortion, then on what could it possibly have had
influence?).
Another reason lies with the case studies themselves. With
exceptions here and there, they are flawless. Indeed, Rosenberg
bends over backwards to demonstrate precisely the opposite of
where he ends up. He develops an extraordinary battery of tests
to discern any possible impact -- from the direct to the very
indirect -- that the Court's rulings may have had on a diverse
range of political actors and the public. To give but a taste,
here are some of things he uses to assess whether the Court
generated change on the abortion issue (pre/post Roe): the number
of legal abortions, precedents, mass and elite attitudes, avail-
ability of abortion services, media coverage, and legislative
activity. In short, he anticipated well, I think, the most
obvious sources of criticism. So too the less-than-obvious ones:
he managed to address almost all of the Ifs, Howevers, and Buts I
mentally raised during the course of my reading. THE HOLLOW HOPE
is, to say the least, a carefully and thoroughly executed study.
I would, then, GENERALLY agree with Robert Dahl's comment about
THE HOLLOW HOPE: "Hereafter, anyone who defends the view of
the Court as a force for basic reforms will have to confront and
rebut the evidence and argument of this book. This will not be an
easy task."
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I stress "generally" because I do have some concerns
about the work. One is, as I already mentioned, that Rosenberg
attrib- utes the success of the pro-choice movement in Roe and of
the NAACP LDF in Brown more to luck and less to litigation
prowess. In his words, "The chief reason [why the movements
won] is that the remaining legal constraint, the lack of legal
precedents was weak... There were precedents for change and
supportive movements within the broader legal culture"
(p.337). I would argue that this was not at all a matter of
"luck." As Rosenberg knows, the key precedential cases
were brought to the Court by interest groups or movements.
According to Greenberg's account in the JUDICIAL PROCESS AND
SOCIAL CHANGE, for example, the LDF spon- sored the litigation
needed to achieve victory in Brown; it was the group's
persistence and not "luck," that weakened "the
remaining legal constraint." I think this is an important
link, but one Rosenberg largely overlooks.
Another quibble I have is that some of his analyses are too
casual. Those on public opinion immediately come to mind. Because
he does not examine trends in survey data in a rigorous way, his
observations tend toward the pedestrian. Here is what he writes
about public opinion on abortion: "there was clearly no
rapid or large change in American's support of abortion after the
Court's decision" (p.238). He may be correct on an
aggregate, first blush, level, but he misses an important point
brought to light in Franklin and Kosaki's (APSR, 1989: 751-777)
intriguing study: Roe did have the effect of polarizing the
citizenry in an unprecedented way.
I could list a few more problems with the study, but they too
would be minor or, at best, insufficient to undermine Rosenberg's
central findings. Thus, I leave it to readers to reach their own
conclusions about the merits or demerits of Rosenberg's research
and its implications. In any event, I do believe that THE HOLLOW
HOPE is absolutely "must" reading. I have just ordered
it for my graduate seminar on the Court, and I cannot tell you
how much I am looking forward to the session at which we will
discuss it. It will undoubtedly generate great debate among my
students, as it will among those of us toiling in the field.
Copyright 1991