From the Publisher
In follow-up studies, dozens of reviews, and even a book of essays evaluating his conclusions, Gerald Rosenberg’s critics—not to mention his supporters—have spent nearly two decades debating the arguments he first put forward in The Hollow Hope. With this substantially expanded second edition of his landmark work, Rosenberg himself steps back into the fray, responding to criticism and adding chapters on the same-sex marriage battle that ask anew whether courts can spur political and social reform.
Finding that the answer is still a resounding no, Rosenberg reaffirms his powerful contention that it’s nearly impossible to generate significant reforms through litigation. The reason? American courts are ineffective and relatively weak—far from the uniquely powerful sources for change they’re often portrayed as. Rosenberg supports this claim by documenting the direct and secondary effects of key court decisions—particularly Brown v. Board of Education and Roe v. Wade. He reveals, for example, that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation, while pro-choice activists invested too much in Roe at the expense of political mobilization. Further illuminating these cases, as well as the ongoing fight for same-sex marriage rights, Rosenberg also marshals impressive evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile.
Directly addressing its critics in a new conclusion, The Hollow Hope, Second Edition promises to reignite for a new generation thenational debate it sparked seventeen years ago.
Booknews
While debate rages over whether the courts should be relied on as tools for legislative change, Rosenberg asks the more fundamental question--can courts produce political and social reform? His argument suggests that efforts to use the courts to generate reforms in civil rights, abortion, women's rights, and other issues have been largely failures. Annotation c. Book News, Inc., Portland, OR (booknews.com)
Lee Epstein
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.
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