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Summary:
Liberals have acclaimed, and conservatives decried, reliance on courts as tools for changes. But while debate rages over whether the courts should be playing such a legislative role, Gerald N. Rosenberg poses a far more fundamental question—can courts produce political and social reform?
Rosenberg presents, with remarkable skill, an overwhelming case that efforts to use the courts to generate significant reforms in civil rights, abortion, and women's rights were largely failures.
"The real strength of The Hollow Hope . . . is its resuscitation of American Politics—the old-fashioned representative kind—as a valid instrument of social change. Indeed, the flip side of Mr. Rosenberg's argument that courts don't do all that much is the refreshing view that politics in the best sense of the word—as deliberation and choice over economic and social changes, as well as over moral issues—is still the core of what makes America the great nation it is. . . . A book worth reading."—Gary L. McDowell, The Washington Times
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Analysis of The Hollow Hope
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Rosenberg's The Hollow Hope goes through several court decisions and the wider political and social landscape before and after those decisions to make the argument that social movements cannot be furthered through the justice system in absence of cooperation from the other branches of government.
Rosenberg's work sparks many questions. First, questions regarding his method come to the fore, as his legitimation issue seems problematic--Rosenberg argues that the courts do not legitimate civil rights policy as shown by the fact that few if any people know about the court's decisions. He states that only 46% of respondents in a survey could think of anything that the Supreme Court had done, but on the next page he states that 71% of respondents disagree with the Brown decision--Rosenberg would have been well-served to explain these disparate numbers.
Second, Rosenberg's attempt to isolate the court and the legislature for analysis seems oversimplified and contrived; we cannot know that the court did not set the stage for or later legitimate Congressional action. Rosenberg gives quotes from legislators who worked on policies such as Title VI saying that these policies were based on principle and not the court's decisions, but it is highly unlikely that a legislator would say that she or he does not vote on principle. While it is unlikely that the court's ruling was the only event that brought about Title VI, it is almost impossible to isolate the two events, and quotes from a few legislators are not adequate evidence.
Third, the major question that Rosenberg addresses may be oversimplified, as the question he investigates seems set out to prove that the American system of government has checks and balances and that one branch cannot be successful without cooperation from the others. Further, it is a given that social movements are by definition `social' rather than isolated in single events such as legal decisions or in the small numbers of people involved in a given lawsuit. Rosenberg argues that the support of the people, politicians, state and local governments, business community, civil rights leaders, and so forth are important for a social movement to succeed. Thus, he sets up a strawman--it is impossible for any single entity to begin and sustain a social movement by itself. For instance, if local governments wanted to further civil rights but the state and federal governments as well as the courts were against local civil rights policies, then the local governments, sadly, would fail. Thus, asking whether the courts can begin or continue a social movement on their own puts too much pressure on them as an entity in the same way that it would put too much pressure on any entity to ask it to dramatically change the entire country despite opposition from the others.
In summary, the answer to Rosenberg's question of whether the courts are dynamic or constrained is that it is a bad question. Rosenberg's analysis shows the theories to be too bifurcated--we should not ask whether the courts can spur social movements alone, but rather investigate the court's role, in collaboration with other entities, that helps further the social movements that occur. Rather than trying to argue that the courts cannot or have not furthered social movements and then arguing that Brown and other such decisions occurred in a vacuum, uncaused and uninfluential for later events, it would be more educational to focus on how the court may contribute to the larger occurrences necessary to a successful social movement.
Indispensable examination of the efficacy of courts as agents of social change.
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Lawyers and politicians see courts as a means of creating, or forcing, social change. Lawyers have a professional commitment to this vision because without powerful courts, their work becomes less important; politicians adhere to this view because of the rhetorical force of rants against the evil and (usually) liberal courts. Rosenberg describes this as the dynamic view of courts. In contrast, the constrained court model posits a court that requires certain internal and external conditions before it can act, and that these constraints limit the courts to only a supporting role to change primarily pushed through the political processes.
Rosenberg engages in an empirical analysis of the Supreme Court's effect upon social change in primarily two areas: desegregation and abortion. These are ambitious and controversial challenges because it is accepted legal gospel that both Brown and Roe created massive social change. Contrary to this wisdom, Rosenberg argues that neither case directly or indirectly created social change. For instance, desegregation rates remained nearly unchanged for more than 10 years after Brown; it was not until Congress passed the Civil Rights Act and educational funding bills that conditioned federal aid on ending segregation that desegregation became a reality. Rosenberg engages in a similar analysis for abortion and Roe. While the evidence as to the limits of direct social change is compelling, Rosenberg's analysis of indirect effects is obviously weaker and somewhat more speculative because of the difficulty of demonstrating causation for indirect effects, though he does argue that there is little reason to believe court decisions indirectly effect change through encouraging popular movements. Overall, the Court's work for the 15 years following this book seems to support its conclusion: the Court refused to declare a right to die where the country is deeply divided over the issue; it has loosened constitutional protection for abortion, which is in line with the majority of Americans who support abortion with some limits; it has only shown limited interest in gay rights, striking down sodomy laws that 70%+ of Americans opposed, while avoiding gay marriage which roughly 70% oppose.
While not without controversy, Rosenberg's book is a central and indispensable work of political science. There is vigorous debate over elements of this book, particularly regarding his conclusions on indirect effects, which is all for the best because scholars who once assumed the efficacy of courts are now on notice that they most prove their assumptions are empirically valid. Students of public law and the Court will find much of value in Rosenberg's seminal book.
Best Book EVER!
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Rosenberg kicks ... "GR" has written a thought-provoking, insightful, saucy account of the academy's hero worship of the Supreme Court. Not unlike McCloskey, Rosenberg refuses to divorce the Court from its socio-political location and in the process challenges reductive analyses from the likes of David O'Brien. Rock on, GR.
An Insult to the Academic World
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(In response to Rosenberg's work on Brown v Board of Education only)
In this poor attempt to prove an impossible argument, Gerald N Rosenberg produces one of the biggest insults to the academic world I have ever come across.
Do not be persuaded by Rosenberg's seemingly convicing argument, it is full of holes and poor logic. In attempting to disprove the axiom that courts can bring out significant social change, Rosenberg, ignores the best evidence in support of the dynamic court view, and the majority of the evidence he uses is presented in a deceptive manner.
To give two examples of Rosenberg's terrible work, one can look to his examples of the actions of Eisenhower and King, in which he argues that neither man was influences by the Supreme Court and its ruling in Brown v. Board of Education. Rosenberg argues that Eisenhower did not legitimize his actions in 1957 to send troops into Little Rock, Arkansas on the basis of the Supreme Court's ruling. However, in a famous and nationally televised address, Eisenhower specifically mentions the Brown decision as the reason for action in Little Rock - Rosenberg omits this glaring fact with the hope that a reader will passively accept his evidence. Furthermore, when quoting King in an attempt to prove that the bus boycotts were not influenced by the court, Rosenberg starts off with a quote from King, and ends the quote skipping 130 pages of King's remarks simply to find an appropriate end to the quotation that will prove his point. As if this weren't enough, Rosenberg deceptively ADMITS in a footnote that the night before the boycott King specifically mentions Brown in a speech as the reason for his followers mobilization.
These are only few of the glaring holes in Rosenberg's argument against the dynamic court view and in favor of the constrained court view. Rosenberg feels that it is a "hollow hope" to think that the courts can lead to social change in America, however, the only thing that is "hollow" about his work is his argument.
An absolutely meaningless work - do not believe the hype about how great and revolutionary this book is - its argument and conclusion hold no weight and ignore the most relevant evidence against it.
The weakest branch
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In The Hollow Hope, University of Chicago political science and law professor Gerald Rosenberg defends a thesis that, although its roots in American thought extend back to Alexander Hamilton, is currently a highly controversial one. He argues that court decisions, in spite of the importance ascribed by political analysts of all stripes to such landmark cases as Brown v. Board and Roe v. Wade, are generally incapable of generating significant social reform.Using a combination of quantatitive data and textual analysis, he argues (persuasively) that the Brown decision had little impact on school segregation. Significant headway, Rosenberg argues, was not made against this vexing social problem until the enactment of the 1964 Civil Rights Act. With respect to Roe v. Wade, he argues that the decision had an ultimately counterproductive effect by energizing the pro-life movement and setting back a trend towards the liberalization of abortion laws that was well under way before 1971.A social scientist, Rosenberg is careful to maintain a degree of equivocation with respect to the issue. He posits a framework under which court decisions might mave a greater than typical impact. And indeed, his evidence cannot be regarded as defintive proof- it is impossible to quantify all of the possible effects of a key court decision. He argues very compellingly, however, that the faith placed by liberals in the courts is based more on emotion than evidence, and this might have the consquence of wasting precious resources on expensive legal victories that do not manifest themselves within the American polity. As such, this lucid and challenging book is essential reading for anyone who is interested in American public law
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