and Hollow Hopes
Responding to Criticism
Gerald N. Rosenberg, author of The Hollow Hope: Can Courts Bring About Social Change?
The first edition of The Hollow Hope hit a raw nerve. The book’s argument does not sit easily with many readers. And they have not been reticent in voicing their criticisms and concerns. Indeed, there have been dozens of reviews of this book, an edited collection of essays evaluating and testing the argument (Schultz 1998), follow-up studies, and countless course papers. I have responded to some criticisms in an article (Rosenberg 1992) and a book chapter (Rosenberg 1998). For the ease of the reader, I will here briefly respond to the most often-stated criticisms. In addition, at the end of my comments there is a list of major reviews of the book.
The Hollow Hope is part of a long line of scholarship evaluating the work of the Supreme Court and social change. Unlike much of that work, however, it is based on empirical social science, not ideology. Writing in 1960 when the Warren Court was facing a great deal of criticism, Robert G. McCloskey noted that, historically, debate over controversial Supreme Court decisions has almost always been “a contest between those who happen for the moment to like the Court because it serves their purpose and those who traduce it because it does not” (McCloskey 2005, 244). In other words, the evaluations people make about Court decisions are largely based on whether or not they agree with them. It is rare to find legal scholars or political activists who support the outcome of a case but believe the case is wrongly decided. In evaluating the Court, ideological beliefs inevitably color understanding. One supports a particular outcome, and if the Supreme Court reaches such an outcome, it is to be praised. For example, in the late nineteenth century, conservatives supported an activist Court because they substantively agreed with the Court’s striking down of legislative attempts to regulate the economy. Progressives, in contrast, who supported economic regulation, criticized the Court, arguing that it was antidemocratic and acting against the will of the people (Paul 1960). In the wake of the New Deal, when the Court essentially switched sides, so did its supporters and critics. Conservatives criticized the courts for allegedly carrying out the desires of an unrepresentative liberal elite while progressives praised the judiciary for its moral vision. In the early twenty-first century it appears that supporters and critics are switching sides again with conservatives supporting an activist Court and progressives opposing it. In evaluating the role of the courts in social change, ideological preferences are often paramount.
The aim of The Hollow Hope is to present an empirical and social science based examination of the efficacy of the Supreme Court in furthering significant social reform, not an ideological one. One of the strengths of social science methodology is that it reduces the likelihood of ideology determining evaluation. Social science approaches, although resting on contestable epistemological beliefs, provide a way of analyzing the role of the Court and social change free from ideological blinders. In particular, social science methods, by requiring that claims be supported by evidence and that they be falsifiable, provide a way to decide between competing claims. If a claim cannot be falsified by empirical evidence, then one has no way of judging its accuracy. Criticism that lacks evidence and claims that are unfalsifiable are seldom more than ideological exercises that don’t allow for persuasion and learning; either one agrees with the underlying political preferences or one does not. In contrast, the tools of social science make persuasion possible. Social science approaches allow for the possibility of knowledge, not the mere confirmation of predetermined ideological belief.
Much (but not all!) of the criticism of The Hollow Hope appears ideologically driven. 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. This ideological approach holds for other issues as well. If critics support the substantive policy the court decision embodies, then they believe that the decision must be efficacious. A finding that the decision was not implemented, regardless of the evidence on which it is based, is understood as criticism of the substantive holding. This all-too-common approach equates questions of judicial efficacy with substantive criticism and even moral evaluations. As I will illustrate, a good deal of the criticism of The Hollow Hope appears driven by ideology. This can be seen in mischaracterization of the argument, lack of evidence to support claims, contradictory arguments, and implausible claims. 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.
My aim is not to reargue the book, nor to respond to each and every critical point raised by others. Rather, I will focus on some of the most common criticisms that have been offered. In doing so I argue, as I have throughout the book, that the most useful approach to the study of courts and social change is based on careful empirical work combined with historical sensitivity, methodological awareness, and broader normative concerns. My hope is that this response will provide readers with a sense of how I might respond to critical points I don’t discuss, and with what justifications. I harbor no illusions that I will persuade all critics but I do hope I will challenge them to base their criticisms more on social science and less on ideology.
Finally, the bulk of the criticism of The Hollow Hope has been aimed at my discussion of Brown. Surprisingly, and for me disappointingly, most readers appear to have focused much less on my argument about Roe, let alone the other cases I consider. While I’m not sure why this is the case, I suspect it has to do with the fact that by the end of the twentieth century racial equality was part of the American creed and Brown was held up as its symbol. In contrast, legal abortion was still contested, albeit by a minority, and thus Roe lacked the symbolic reverence accorded to Brown. My argument that Roe has been unevenly effective, and that its limited effectiveness can be explained by the constraints and conditions I develop, does not raise the same concerns as my argument that Brown contributed little or nothing to civil rights. In any case, in the material that follows I focus more on Brown than on Roe and other cases simply because my critics have done so.
Many critics have misread The Hollow Hope 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. Indeed one critic goes so far as to accuse me of “juricide,” of presaging the “death of the law” (Zalamn in Schultz 1996, 294). This is emphatically not the argument of The Hollow Hope, and nowhere in the book do I make such a claim. 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. A prime example is product liability litigation. In the last several decades of the twentieth century there were major judicial decisions on the safety of products ranging from asbestos to automobile safety to tobacco. The results of these and other similar lawsuits affected the products Americans could buy, the prices they paid for them, and their safety. Similarly, court decisions interpreting statutes can have a major society-wide impact. A good example of this is judicial interpretation of the Americans with Disabilities Act, which affects a great deal of behavior ranging from employment practices to building design. Court decisions interpreting the Constitution can also have major effects. In striking down statutes, for example, judicial decisions can maintain the prestatute status quo and serve as a barrier to change. Clearly, courts have broad impact on American society and The Hollow Hope never denies this.
Even within the cases analyzed in The Hollow Hope I found evidence that courts matter. For example, two leading legal academics criticize the argument by claiming it holds that Roe didn’t matter (Schuck 1993, 1778–79; Devins 1992, 1057–65). This is not the argument of The Hollow Hope. I argue 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. I do point out that Roe wasn’t the thunderbolt it is typically described as being for a number of reasons, including the fact that in 1972, the year before the decision, there were nearly six hundred thousand legal abortions performed in the United States. And I suggest that without both elite and public support, and the ability of doctors and privately owned clinics to provide abortion services if they so chose, Roe would have not produced much change. But none of this denies that Roe produced significant, albeit limited, social reform.
If the Supreme Court overturns Roe, as may happen, then the theory will be put to the test. If that were to happen, what might the theory of The Hollow Hope predict? 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 strong foundation of support for access to safe, legal abortion in much of the country, and there is demand for the service. In addition, abortion providers have an economic incentive to meet that demand. 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. The result would likely be a patchwork quilt of state regulations. In practice, this may not be so different from existing practices today where, despite a constitutional right to abortion, hundreds of thousands of women are required to travel great distances from their homes to obtain abortions. In addition, there would likely be a political backlash against antiabortion elected officials that could bring to power officials more supportive of abortion choice. Assuming that a Supreme Court decision striking down Roe was brought by abortion opponents, this would provide another example of a Court victory for one side producing mobilization by the losers. But unless and until the Court overturns Roe, these points remain untested.
This mischaracterization of my argument is additionally puzzling because The Hollow Hope is narrowly focused on a particular type of litigation designed to produce what I call significant social reform. I explicitly define this litigation on page 4 as being brought to obtain the
broadening and equalizing of the possession and enjoyment of what are commonly perceived as basic goods in American society . . . [such as] “Rights and liberties, powers and opportunities, income and wealth” . . . 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 . . . [Further, significant social reforms] 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.” (References omitted)
It is in these and only these types of cases that I found, absent certain conditions, courts could not produce significant social reform. And in finding that these conditions were rare, I emphatically did not conclude that courts don’t matter or have no impact on the broader society. I argued more narrowly, concluding only that courts were unlikely to further significant social reform. I did find that courts don’t matter in the same way at all times on all issues. But even here, I argued that when certain conditions were present, courts could make a major contribution to significant social reform. This occurred in almost all of my examples including civil rights, abortion, reform of the criminal law, etc. And even when the conditions were not present, courts affect society in a powerful way by drawing resources to litigation and away from political mobilization. The argument of this book is controversial enough without criticizing it for claims it never makes.
Straw Person Arguments
One of the consistent criticisms of The Hollow Hope is that it is based on a straw person argument. The criticism is that nobody believes that courts, acting alone, can change society. Therefore, there is nothing remarkable or controversial about the book’s central argument. In other words, I have set up a straw person that is relatively easy to knock over. According to this criticism, The Hollow Hope criticizes a position that nobody takes.
This criticism leaves me dumbfounded because it is so obviously false. Over the time period studied, numerous organizations invested enormous resources on litigation to the exclusion of other strategies. For example, I documented how in civil rights the NAACP focused almost entirely on litigation. Given the scarce resources social reformers possess, this was a costly strategy. In addition to actual behavior, organizational leaders explicitly stated that litigation would produce the changes they sought. They argued important cases, gave speeches, wrote books and articles, and received press coverage. In an early review of The Hollow Hope, Feeley, in a rough count, found attributions to forty-two different supporters of judicial efficacy in the book (Feeley 1992, 749–50). They were leading lawyers, legal academics, and social scientists. More recently, leading proponents of same-sex marriage have turned to litigation to further their goals and one of them, Evan Wolfson, was selected by Time magazine for its “Time 100” list of one hundred people around the world who have “played a critical role in shaping modern society.” Studying how people actually behave does not create a straw person argument.
The straw person criticism sometimes takes a narrower form and claims that there is no serious academic literature that argues for reliance on courts. Even if this were true, it wouldn’t matter much because the object of inquiry is the behavior of groups seeking significant social reform, not the scholars who write about them. But this criticism, too, is demonstrably false. There is a large literature, written by both legal academics and social scientists, that argues for the importance of litigation as an instrument of social reform. And many of the critical reviews of the book stress the importance, if not the necessity, of litigation for social reform. Indeed, many reviews have a contradictory character, arguing on the one hand that no one believes that courts have singular importance and then arguing, on the other hand, for the fundamental importance of a particular case, usually Brown.
A final point that undercuts the claim is that if The Hollow Hope was based on a straw person argument, it would not have generated the kind of scholarly interest that it has. This interest suggests that there remain many more adherents to the belief in the efficacy of courts to produce significant social reform than the straw person argument admits.
What, then, explains this criticism? While I have no way of knowing for sure, I see two possibilities. The first is a kind of revisionism based on the fact that judicial victories didn’t produce the change for which the reformers hoped. This revision can lead scholars and activists to deny that anyone ever believed that courts acting alone could produce significant social reform. This is as understandable as it is wrong. Second, many critics of The Hollow Hope share the hopes and desires of the idealistic legal reformers. Their animated response to The Hollow Hope, and the mischaracterizations of its arguments that many of them present, may be partly explained by its critique of their deeply held ideological beliefs.
Asking Too Much of Courts
Related to the straw person criticism is the argument that The Hollow Hope demands too much of courts. According to this criticism, it is unfair or naive to expect courts to be able to bring about nationwide change. This is especially the case in areas like racial discrimination where racism is deeply ingrained in institutions and behavior. The Hollow Hope sets such an unobtainable standard for measuring judicial success, this criticism goes, that courts are bound to fail.
It is not The Hollow Hope that asks 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. It also criticizes scholars for paying insufficient attention to the actual effects of litigation brought to produce significant social reform. The policy goals of reformers in bringing litigation are the appropriate measure for the question The Hollow Hope asks.
Focusing on the policy goals of reformers, however, still leaves open the question of what counts as success. Some critics charge that The Hollow Hope creates an all-or-nothing standard for measuring success. Either the policy goals of the reformers are fully achieved or litigation has failed. This is unreasonable, they contend. After all, if some change occurs, then policy is closer to the reformers’ preferred goals then before the litigation. Additionally, some critics suggest that social reform litigators have become more sophisticated in the goals they seek from litigation. They understand that such litigation is not likely to produce change by itself. Rather, they view it as a potential resource in the struggle for significant social reform. They believe that judicial decisions upholding constitutional rights change ideas about what is acceptable and even possible, and can be used to inspire others, leverage resources, and build momentum for their movements for change. Focusing on full implementation misses much of what is most useful about courts in furthering significant social reform.
While there is something to be said for this line of criticism, there are several difficulties with it. One is that it compromises the goals of the litigants. While extending rights and opportunities to more people is certainly good, the aim of the litigators is to do more. For example, Brown and its companion cases were brought not merely to benefit Linda Brown and the other named plaintiffs, but to end racial segregation throughout the country. It is certainly reasonable to conclude that if a decade after the decision school segregation had hardly changed then the goals of the reformers were not met, even if some people benefited.
As for litigation as a resource, The Hollow Hope devotes several chapters to exploring this possibility. Under the heading of “indirect effects,” I looked for evidence that court decisions requiring significant social reform had these important effects. Indeed, the book I set out to write was going to argue that even if courts were unable to change behavior directly, they still had a great deal of influence on change because of the indirect effects of their decisions. Surprisingly, I did not find evidence supportive of the claims. If litigators truly believe judicial decisions have these effects, they are mistaken. But I’m not so sure they do. I suspect that this view is little more than a post hoc rationalization for Court victories that did not produce change. Given the enormous drain of resources that constitutional litigation involves, this is a costly delusion.
Another difficulty with this criticism is that it treats constitutional rights more like bureaucratic regulations than fundamental commitments. The theory behind the Constitution is that the rights it enshrines are immediately and uniformly applicable. The United States is said to be a nation of laws and not people in part because governmental discretion is limited by constitutional rights. The practice of judicial review, the power of an unelected and unaccountable judicial branch to invalidate the actions of the democratically accountable branches, is founded on the claim that constitutional rights, as the supreme law of the land, carry heightened legitimacy. However, if constitutional rights requiring significant social reform are treated as little more than bureaucratic regulations, enforced unevenly depending on political support, then the theory of the Constitution is considerably weakened. Thus, because litigators want results, and because the theory of constitutional rights requires that implementation follow constitutional decisions, it is appropriate to use full implementation as a baseline for assessing success.
The Cowardly Court
A related criticism of my argument makes the opposite point that it asks too little of courts. Implementation may fail not because of constraints on courts but because the Justices don’t require it, what McCann calls “timid judicial will” (McCann 1992, 726). If only the Supreme Court had required more, and acted sooner, the argument goes, change would have occurred. This point is particularly stressed in civil rights where critics of the Court often allege that the language of “all deliberate speed” in Brown II let the Southern states off the hook. For example, Olgetree argues that the Court’s “reluctance to take a more forceful position on ending segregation immediately played into the hands of the integration opponents” (Ogletree 2004, 11). Desegregation occurred later, some critics argue, because the Court required it in decisions such as Green v. County School Board of New Kent County, Virginia (1968) where the Court held that “the burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now” (1968, 439), and Alexander v. Holmes County (1969) where the Court held that “continued operation of segregated schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible” (1969, 20). The essential claim is that if the Court had acted more forcefully in the beginning, change would have occurred.
While I agree that the language of Brown II could have been stronger, I find no evidence that stronger language would have produced desegregation. This is because focusing on the language of judicial decisions excludes the political, social, and economic context in which the decisions have to be implemented. As I detail in the chapters on civil rights, there was enormous opposition to desegregation that the Court was powerless to overcome. In chapter 3 I show that desegregation occurred because of congressional and executive action, especially the enactment of the 1964 Civil Rights Act, the 1965 Elementary & Secondary Education Act, and the willingness of the executive branch to enforce them. It is overly legalistic to focus narrowly on the Court to the exclusion of the larger society. To sharpen my point: it would not have mattered what the Court ordered in Brown II because there was insufficient political support for desegregation. The problem was not in the Court but in the constraints that limit it and in the unwillingness of the broader society to confront segregation.
This position is strengthened by recalling the discussion in chapter 2 of Supreme Court cases in areas such as voting rights and transportation. Even when the Court used clear, strong, and unequivocal language, little change occurred. Looking to the language of Supreme Court decisions for an explanation for the lack of implementation is to look in the wrong place.
A common criticism is that The Hollow Hope rests on an uncritical belief in the ability of non-Court actors such as the Congress and the executive branch to bring about significant social reform. The argument seems to be that if I had a more realistic notion of the limitations of other institutions, I would view the courts more favorably.
There is a logical fallacy in this argument. If courts can’t bring about social reform, then it’s not relevant whether other institutions can or cannot. For example, the argument that same-sex marriage proponents are right to litigate because legislative or administrative action is unobtainable only makes sense if courts, acting on their own, can bring about same-sex marriage. If they can’t, then the capacity or incapacity of other institutions is immaterial.
In addition to the logical fallacy, this criticism is too narrow in its conception of how social change occurs. Governmental institutions are only one set of societal actors. There are also social, cultural, economic, political, and religious actors, and influencing them can hasten change. As I noted in the concluding chapter, civil rights activists, for example, had options other than litigating or lobbying. They might have been better off registering voters outside of the South; pressuring non-Southern corporations to stay out of the South or to stop discriminating in their Southern operations; writing books, plays, poems, etc. about the injustice of racism; and so forth. Similarly, same-sex marriage proponents might invest more of their resources in these pursuits rather than in litigation. The point is that claims of efficacy about any given institution are logically independent of the capacities of any other institution.
A related criticism that is sometimes made is that the argument overlooks the importance of the dialogue between the Court, the other branches, and the public at large that a Court decision can create. This alleged failing is of particular appeal to legal academics for whom the claims of Bickel, Rostow, and others (discussed on pp. 25–26) may have taken on mythical status. The problem with this argument is that in the hands of many legal academics it is devoid of empirical support. They simply assume that Supreme Court opinions influence all people across all issues and at all times. To put it mildly, the empirical evidence presented in the book supplies no support for this dialogic claim. There is also no evidence to support the narrower and more plausible claim that Court decisions cause people to reevaluate their positions on issues about which they care. Certainly both the public and political leaders react to Court decisions. But the question for The Hollow Hope argument is not whether anyone reacts to a decision but whether the decision furthers the reform goals of the plaintiffs by changing people’s beliefs. Simply asserting that Court decisions have this effect is not persuasive.
The second problem with this criticism is that it assumes that whenever the Congress reacts to a Court decision, this is a strike against my argument. For example, Devins, in a long discussion of Court, Congress, and executive interaction in civil rights, argues that in the areas of tax breaks for racist schools, diversity preferences for minority broadcasters, and employment discrimination, the other branches responded to Court decisions in ways that furthered civil rights (Devins 1992, 1046–54). I believe Devins is correct but also believe that nothing in The Hollow Hope argues against this. In each of these subject areas there was legislation or executive orders furthering the civil rights goals. The existence of such political action means that each of the constraints were or could be overcome. The first constraint was overcome because governmental actors created a statutory right, the second constraint was overcome because that action signaled to the justices that they were unlikely to suffer consequences for acting, and the third constraint could be overcome if administrative officials, whose acquiescence was required for implementation, were supportive. If this was the case, then the fourth condition was also met and change could occur. Indeed I suggest that in cases such as these proponents of significant social reform should consider litigation as a viable option. A careful reading of The Hollow Hope leaves much room for judicial efficacy.
Evidence and Common Sense
Some of the responses to The Hollow Hope criticize it by simply asserting that courts made a crucial contribution to producing significant social reform. How do the critics know this? They assert it without ever providing evidence for it. Their arguments are somewhat akin to the remark of Justice Stewart in discussing pornography: “I know it when I see it” (Jacobellis v. Ohio 1964, 197). The problem with such claims is that one has no way of assessing their accuracy. For centuries most people believed the earth was flat. It was a matter not merely of faith but of the prevailing cultural understanding of the world. Assertions about the importance of the Court in producing significant social reform have much the same flavor. They are unexamined, taken for granted. The argument of The Hollow Hope, for all its faults, is supported by a wealth of data. I challenge those studying the courts to avoid unsupported claims about the importance of courts and present the empirical data that supports their conclusions.
It would be more tedious than helpful to list each and every unsupported assertion made by critics. Instead I recommend that when readers encounter claims that The Hollow Hope is wrong, or come to a similar conclusion on their own, they ask themselves whether they have the evidence to support such a belief. If not, then thinking about how those claims could be tested might further our understanding. Court decisions and social change are not merely abstract notions; they are also actual events. If the aim of scholars is to understand the world in which we live, empirical data must be a central part of every investigation. Far too many critics avoid empirical testing to present ideologically driven arguments.
A related criticism is that the argument of The Hollow Hope lacks common sense. For example, many critics note that today Brown is considered one of the most important Supreme Court decisions of all times. Further, critics claim that there was no or limited desegregation before Brown and a good deal of desegregation after the decision. In other words, they argue, the Court acted and subsequently change occurred. Therefore, the Court must have played an important role. To put the point directly, a critic might claim: “Look, Brown happened; it had to matter.” In addition, at least some critics argue that the evidence I present to test claims is too crude to analyze the claims. The effects I am testing are too subtle to be measured by available evidence. This claim is often made in response to chapter 4 where I find no evidence for the claim that the Court in Brown had important indirect effects.
On the surface, these criticisms are appealing. The prevalence and depth of both segregation and racial discrimination were substantially less in 1974, twenty years after Brown, then they were in 1934, twenty years before Brown. But it does not follow from this that Brown made much of a contribution to that change. Many events happen in the world that exert little or no causal influence on later events. Of course Brown had effects but it doesn’t automatically or necessarily follow that it furthered the cause of civil rights. By focusing on the actions of the Court, scholars implicitly assume that its decisions play an important role in change. This is an empirical claim that must be subjected to empirical study. Without such evidence, it simply assumes the importance of the Court, and a particular outcome of that institution, rather than treating the importance of the Court and its decisions as questions for investigation.
In a similar vein, the criticism is too law-centered. Brown made segregation illegal but the question is whether it changed behavior. One can’t assume that simply because the Supreme Court finds behavior unconstitutional that such behavior stops. Clearly that did not happen in civil rights where state-based segregation continued, sometimes for decades, after Supreme Court decisions striking it down (see chapters 2 and 3). Supreme Court decisions are neither a necessary nor a sufficient condition for changing behavior. And unless we are all constitutional law casebook editors, or care only about jurisprudence, changing behavior is what matters.
In terms of evidence, some critics allege that the impact of the Court can’t be measured, and that the data I present are merely suggestive, at best. While cautionary reminders about the limits of our knowledge are always appropriate, this criticism is mostly wrong, and partly misleading. It is mostly wrong because a large variety of impacts are measurable. These include, for example, the number and rate of African American children in school with whites, the number and content of media stories about Brown and civil rights, the number and timing of legal abortions, and even the results of public opinion polls. These and many other potential impacts of judicial decisions can be measured. The disappointing results for those who support change don’t mean that the measurements are flawed. They mean that an uncritical belief in the ability of courts to produce significant social reform lacks empirical support. The fault is not with the measurement or the evidence, but in the ideological belief that powers the criticism.
There is more weight to the criticism that the impact of the Court can’t be measured in the area of indirect effects. These include the range of indicators of indirect change examined throughout the book but focus on the beliefs, feelings, and thoughts of activists, political leaders, and everyday citizens. As I note in chapter 4, social scientists lack the tools to understand precisely what people are thinking and why. But it is misleading to conclude from this that therefore Court decisions have important indirect effects. In the first place, in all of the most obvious places to find such evidence, it either doesn’t support the claim of causal influence or cuts against it. With both Brown and Roe, for example, there is little evidence that the decisions increased public support for desegregation or legal abortion, respectively. It is not persuasive to respond that decades of survey data are incapable of measuring people’s beliefs. Interestingly, while this criticism has been leveled at my discussion of Brown, it has not, to my knowledge, been aimed at Roe. This suggests to me that there is a broader societal consensus about nondiscrimination than about access to legal abortion, and that the criticism is ideological in nature.
A second reason that the criticism is misleading is that it inevitably leads to an assertion of judicial efficacy. Simply because some of the data are merely suggestive and not definitive it does not follow that the Court had an important impact. Many critics make this claim. Using Brown as an example, the argument seems to be something like this: (1) Brown had inspirational impact, (2) we can’t measure that impact because the decision happened too long ago and because we lack sufficiently honed measures, (3) therefore Brown had inspirational impact. But this is argument by assertion, with point 3 being merely a particularized restatement of point 1 with no support from point 2. This kind of logic dismisses empirical investigation by fiat. It is ideology, not social science.
To illustrate this kind of criticism, consider the following claim of two adamant critics, David A. Schultz and Stephen E. Gottlieb. They write, “what is critical about Brown, Roe, Baker and other similar decisions is how they reshaped choices, expectations, institutions, and structures. In this respect, American politics was significantly different the day after these decisions because the Court granted legitimacy to certain claims, attached legal support or approbation to certain actions, or otherwise defined new roles for itself or for other institutions to follow” (Schultz 1998, 25). This is a strong claim about the effects of leading decisions. What is the evidence for it? Schultz and Gottlieb present none, other than the trivial claim that the law was different the day after the decisions than the day before them. This is argument by assertion with unsupported claims about changes in institutional roles, in attitudes, and, implicitly, about the beliefs of elected officials, unspoken assumptions, attitudes, agenda setting, etc. Such an approach doesn’t help one understand whether change occurred and, if so, how the change mattered. Rather, it assumes the importance of the Court by definition. They could be right, but how do they know? What is their evidence? Throughout The Hollow Hope I present an array of evidence to try to measure claims of judicial efficacy. Readers are, of course, free to criticize the evidence but the burden is on those who believe in the Court’s important effects to depart from the realm of assertion and find support for the claim.
One of my favorite criticisms is that because I wasn’t an adult when Brown was announced, I don’t appreciate its impact. I often hear the claim from some who remember the decision that Brown had an enormous impact on young adults and others who were old enough at the time the decision was issued to understand its significance. I find this criticism amusing because the only evidence that is adduced to support it is the experience of the critic. Although I do not doubt the earnestness with which the criticism is offered, I do doubt its generalizability. “If me and my friends believe X,” the argument goes, “then X must be true.” This is social science by personal anecdote. How often have many of us thought that if only everyone thought the same way we did the world would be a better place? But, alas, it usually turns out that we are not representative of many more people than our small group of friends. Reliance on personal experience to understand the societal impact of Court decisions is misplaced.
Personal experience does matter among civil rights activists. If they were inspired by the Court to join the civil rights movement, then this would count as evidence that the Court contributed to significant social reform, albeit indirectly. I explored this possibility in some depth in chapter 4 and found that it lacked evidence. More poignantly, Roe and the victory for the pro-choice movement demobilized supporters. My point is that criticism based on personal experience is not generalizable and thus doesn’t help us understand historical events.
A critical reader may still hesitate to accept the argument, particularly with Brown. After all, such a reader might say, there was a lot of reaction to Brown, especially in the South. Surely this signifies the importance and impact of the decision. While the negative reaction to Brown does testify to its impact, it tells us nothing about Brown’s contribution to producing significant social reform. It mistakenly equates impact with implementation. Actions of governmental institutions can have impact without furthering social reform goals. While there was a great deal of adverse reaction to Brown in the South, and this is evidence of its impact, it is most decidedly not evidence of its furthering the cause of significant social reform.
The hesitant, critical reader might respond by pointing out that Brown is admired throughout the country and across the political spectrum, and is hailed as perhaps “the most important political, social, and legal event in America’s twentieth-century history” (Wilkinson 1979, 6). Its fiftieth anniversary in 2004 was celebrated with conferences at many universities and events throughout the country. I can’t think of another Supreme Court decision that has been so celebrated. Doesn’t this suggest that it made an important contribution? Perhaps, but there are other possibilities. It may be the case that Brown has come to represent this society’s official aspirations to be free of discrimination rather than its ongoing reality. In this sense Brown has come to be understood as a constitutional symbol of that aspiration, not as a reflection of actual behavior. If this is correct, it tells us something about current ideology in the United States but nothing about the effects of Brown on actual behavior. In addition, celebration of Brown may actually retard significant social reform in civil rights. As I suggest in the concluding chapter, a danger of litigation as a strategy for significant social reform is that symbolic judicial victories may be mistaken for substantive behavioral change. In celebrating Brown, Americans may believe that discrimination has been overcome, relieving them of the difficult task of confronting its deep-seated and ongoing, systematic nature. In other words, the celebration of Brown serves an ideological function of assuring Americans that they have lived up to their constitutional principles without actually requiring them to do so. It encourages us to look to legal solutions for political and cultural problems. In this way, Brown serves a deeply conservative function of diverting resources away from substantive political battles, where success is possible, to symbolic legal ones, where it is not. The existence of Brown as a symbol, in and of itself, provides no evidence that the Court can produce significant social reform. It may, in fact, stymie change.
The discussion in this section illustrates the problematic nature of studying the courts and social change, and making claims about them, without providing empirical evidence to assess the claims. It is of course possible that the critics are right and that The Hollow Hope overstates the limitations on courts in producing significant social reform. But without evidence one has no way of knowing this. Simple assertion is nothing more than a reflection of ideological belief. And when ideological belief influences not only the questions one asks but also the approach one takes to answering them, little can be learned.
A World Without Brown or Roe
It is often difficult to imagine living in a different world. What if the Court hadn’t decided many of the cases discussed in the book, especially Brown or Roe? Some critics have alleged that imagining such a world underscores the importance of the Court in producing significant social reform. Without these two landmark decisions, these critics argue, segregation would not have ended and access to legal abortion would not exist. Therefore, the Court played an important role in producing significant social reform.
I take this point seriously. In order to meet it, I need to show that the changes that did occur were a product of forces independent of the Court. I try to do this in chapters 5 and 8 where I explore the social, economic, and political forces that were creating pressure for change in civil rights and abortion and women’s rights, respectively. However, critics might still argue that without the Court’s decisions that pressure would have been exhausted and change would not have occurred. This is a more difficult challenge to meet. I believe it can be met by showing first that the Court decisions didn’t produce change, and second that there is a plausible story, a counterfactual, that can be told about how change would have occurred without judicial action. Since the bulk of the book makes the first showing, are there plausible counterfactuals that can be told?
In thinking about counterfactuals it is important to point out that while they are useful they can’t be definitive. This is because we simply can’t know what would have happened absent events that did occur. History is not a repeatable experiment and unlike in the natural sciences we can’t rewind it and let it play out again without the Court acting. Having said that, there are plausible stories to tell about what might have happened. With abortion, without Roe the pro-choice movement would likely have continued to push for repeal of restrictive state abortion laws. As I describe in chapter 6, by the end of 1972 there was growing public support for access to legal abortion, widespread support for it among relevant professional elites, little opposition to it on the federal level, successful reform in eighteen states, and large-scale use of it with nearly six hundred thousand legal abortions performed in 1972 alone. While it is possible that the movement would have slowed down, having presumably already won in states more inclined to its views, from the point of view of the reformers massive change would have occurred. Indeed, even Justice Ginsburg, a strong supporter of abortion rights, stated—as early as 1985 and again in 1993 in her confirmation hearings for the U.S. Supreme Court—that in retrospect she believed Roe had come too soon, in effect ending a democratic movement to change abortion laws that might have built a broader consensus in support of abortion rights (Ginsburg 1985, 385–86). Given the opposition that Roe appears to have ignited, and the uneven availability of legal abortion today, it is quite plausible that legal abortion would be at least as accessible today without Roe as it is with Roe.
In civil rights, the alternative story focuses on the claim that it was congressional action, in particular the passage of the 1964 Civil Rights Act and the 1965 Elementary and Secondary Education Act, that led to desegregation (see chapter 3). In chapter 4, I present evidence that this congressional action was largely the result of the pressure created by the civil rights movement and that the movement was independent of Brown. In other words, the civil rights movement would have occurred without the Court decision and Congress would have responded as it did. What might have happened then is that a Southern school district would have found itself caught between the conflicting requirements of state and federal law. Under state law it would be required to segregate students on the basis of race but under federal law such segregation would lead to termination of its federal funds under Title VI of the 1964 Civil Rights Act. In the late 1960s, as the U.S. Department of Health, Education, and Welfare moved to enforce federal law, one or more school districts caught in this no-win situation might have brought suit challenging its state’s segregation laws. The Court, in a minor case, would have invalidated school segregation, much as it did in two cases upholding the 1964 Civil Rights Act (Heart of Atlanta Motel v. U.S. 1964 and Katzenbach v. McClung 1964). Thus, the present would not be very different from what it is. While there is no way of knowing whether these alternative histories would have occurred absent Court action, their plausibility suggests it is possible to imagine a world without cases like Brown and Roe that resembles the world of today. The wealth of evidence that The Hollow Hope presents makes the counterfactual more plausible than the mere assertion by some critics that change could not have occurred without Court action.
Mentions of Brown
Critics sometimes argue that The Hollow Hope is wrong because civil rights leaders talked about Brown from time to time. Such critics point to Dr. King’s reference to the case on December 5, 1955, at the first mass meeting of the Montgomery bus boycotters when he said, “If we are wrong, the Supreme Court of this nation is wrong.” Similarly, some critics note the scheduling of a Prayer Pilgrimage to Washington, D.C. on the third anniversary of Brown in 1957. I’m sure one could find other mentions of the Court and Brown by Dr. King and other civil rights leaders. Does that challenge the argument of the book? At least some critics seem to think so, apparently believing that any reference to Brown as important or inspirational by civil rights activists renders the argument of The Hollow Hope weakened, or even fatally flawed.
It seems to me, however, that the question is not whether any civil rights leader ever mentioned Brown or the Supreme Court, or mentioned either of them in an inspirational way. Of course they did! The more important, and difficult, question is how important Brown and the Supreme Court were in originating and sustaining the civil rights movement. Put another way, is it likely that the movement would have originated, continued, and succeeded without Brown? I argue in chapter 4 that the evidence suggests that the answer is yes. And if that evidence is persuasive, then the mention of Brown and the Court from time to time by civil rights activists is trivial.
The Decentered or Bottom-up Approach
A particularly interesting critique of The Hollow Hope is that it focuses much too narrowly on elite actors and Supreme Court decisions rather than on the myriad ways in which courts and law influence the beliefs and behaviors of ordinary citizens. My “top-down” approach, these critics claim, misses many of the ways in which courts and law influence people, especially those involved in social justice struggles. If I had taken a bottom-up approach, this criticism suggests, I would have found many effects. The Hollow Hope, then, examines a limited set of actors but makes bold claims about everyone else that can’t be justified.
There is much to be said for the decentered approach to studying law and social change. In the hands of a subtle and careful scholar like Michael McCann (1994), with whom the approach is most closely identified, a great deal can be learned. While this is not the appropriate venue to discuss in detail the strengths and weaknesses of a decentered approach, to the extent that it stands as a critical counterpoint to the approach of The Hollow Hope it needs to be briefly considered.
A first response challenges the assertion that the argument of The Hollow Hope is entirely top-down and elite focused. In chapters 4 and 8 I analyze changes in media coverage to examine what ordinary citizens might read about civil rights and abortion and women’s rights respectively. I also canvass public opinion polls. In addition, with civil rights I go further and examine the thinking, beliefs, and attitudes of participants in the civil rights movement. By doing so I gain some of the insights available to a decentered approach.
A second response highlights weaknesses in a decentered, bottom-up approach. This approach too often suffers from particularism. That is, by its narrow focus it can miss the larger picture, making it impossible to generalize more broadly about courts and social change. In principle, combining the two approaches may produce the most informative scholarship. To some extent I tried to do that in chapters 4 and 8. But to have done a great deal more would have been to write a different book.
None of this means that the argument of The Hollow Hope is beyond reproach. If I was starting from scratch, I might have done some things differently. For example, I would develop further the importance of judicial action when condition 4 is meet, meaning when there is either legislative or administrative support for change. Under such conditions, litigation for significant social reform can make sense. Also, I would have done a content analysis of press treatment of civil rights, as I did in the second edition with same-sex marriage. While I don’t believe this would have changed the findings, it would have made the analysis richer. Similarly, I would have included analysis of treatment of Brown and civil rights in leading African American newspapers. While I briefly discuss findings in the secondary literature of the muted impact of Brown in the African American press in chapter 4 (p. 133), a more detailed analysis would have enriched the treatment. I actually did such an investigation in the early 1990s and found little change in coverage of civil rights in leading African American newspapers and journals over the 1950s. Finally, I would have thought about toning down the argument. Clearly some of the heated criticism of The Hollow Hope is spurred by its somewhat iconoclastic, no-holds-barred tone that leads many readers to overlook the more conditional and nuanced argument it presents. On the other hand, there might be a price to pay for toning down the argument if it results in making it less stimulating for many readers.
In responding to critics over the preceding pages I have argued that much of their criticism is ideological in nature. This can be seen in mischaracterization of the argument, lack of evidence to support claims, and neglect of the broader political, economic, and cultural settings in which the Court operates. In pointing out the ideological basis of much of the criticism, I have tried to highlight the strengths of an empirical, social science approach to studying the relationship of courts to social change. In particular, the requirements that claims or assertions be supported by evidence, and that propositions be testable and falsifiable, limit the influence of ideological preferences on research. For too many scholars the allure of the Warren Court still clouds their vision with a romantic belief in the importance of the Court in producing significant social reform, in the triumph of rights over politics. Such a belief removes the most important questions and problems from investigation, treating the relationship between courts, law, and social change as a given, not as something to be examined critically. But as I have repeatedly emphasized, in investigating the real world of practice rather than the wished-for world of preference, that practice must be examined critically.
If my response to critics over the preceding pages has been even partly persuasive, the reader may conclude that I have “de-fanged” the argument of The Hollow Hope, making it appear much less radical than critics claim. That was not my aim because the argument of The Hollow Hope never was that radical. What was radical was the belief that litigation could produce significant social reform. In the waning decades of the twentieth century and the early years of the twenty-first century there appears to be a growing realization that courts may be limited in their ability to produce significant social reform. Although there are still many adherents to the criticisms I have presented here, the argument of The Hollow Hope is now seen as less controversial than it used to be. For example, in a 2005 Op-Ed article in the Los Angeles Times Rosa Brooks wrote that The Hollow Hope “presented powerful evidence that even landmark cases such as Brown vs. Board of Education and Roe vs. Wade either had little practical effect or simply reflected broader societal changes that were already underway.” She then went on to note the following: “Although Rosenberg was at first roundly attacked by legal scholars (who have something of a professional stake in believing that Supreme Court decisions matter), today many constitutional experts accept that Rosenberg was correct” (Brooks 2005).
While my sense is that hostility to the argument has declined, I am not convinced this is due to my having persuaded many critics. Rather, I suspect that acquiescence to the argument, or apparent agreement with it, may be driven more by opposition to the conservative Courts of the late twentieth and early twenty-first centuries. When the Supreme Court appears hostile to significant social reform, The Hollow Hope argument that liberal reformers should avoid litigation absent certain conditions may seem like sage advice. However, if and when the Court has a liberal majority I suspect that the argument will once again be vigorously challenged. But this is to be expected, for if experience has been the life of the law, then debate has been the life of The Hollow Hope.