New Evidence — Court Action Doesn’t Produce Social Change

One argument that appeared (it may have just been the debates I judged) more popular at Yale was a variation of the argument that Supreme Court protection of a right (in this case, the right to only be searched when probable cause exists) will contribute generally to more positive social change.
One team argued it would produce widespread progressive change in the juvenile justice system. Another team argued it would lead to restorative justice approaches to juvenile crime. A third team argued it would create a strong legal precedent to generally protect privacy rights and specifically to protect the privacy rights of individuals on welfare who may be subject to drug tests.
This post contains evidence to answer the general claim that Supreme Court protection of a right will trigger widespread social change.  There is strong evidence that such action will actually undermine social change.
The evidence here, plus some additional evidence, is available to subscribers in these two Microsoft Word files.
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I’m in the process of writing a separate post to answer the argument that extension of court precedent will protect other privacy rights.

Turn – Court decisions produce a political backlash, undermining social change

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
Before I sum up the findings of this chapter, 1 think it is important to note that while there is little evidence that Brown helped produce positive change, there is some evidence that it hardened resistance to civil rights among both elites and the white public. I have documented how, throughout the South, white groups intent on using coercion and violence to prevent change grew. Resistance to change increased in all areas, not merely in education but also in voting, transportation, public places, and so on. Brown “unleashed a wave of racism that reached hysterical proportions” (Fairclough 1987, 21). On the elite level, Brown was used as a club by Southerners to fight any civil rights legislation as a ploy to force school desegregation on the South. Just a few days before Brown was decided, for example, a U.S. House committee opened hearings on a bill introduced by Massachusetts Republican John W. Heselton to ban segregation in interstate travel. The bill died and Brown, Barnes concludes, “probably contributed to the demise” (Barnes 1983, 94). In hearings and floor debates on the 1957 Civil Rights Act, Southerners repeatedly peatedly charged that the bill, aimed at voting rights, was a subterfuge to force school desegregation on the South (U.S. Cong., House 1957, 806, 1187; Cong. Rec. 1957, 9627, 10771). When Attorney General Brownell testified before a Senate committee on the 1957 bill, he was queried repeatedly and to his astonishment on whether the bill gave the president the power to use the armed forces to enforce desegregation (U.S. Cong., Senate, Hearings ings 1957, 214-16). By stiffening resistance and raising fears before the activist tivist phase of the civil rights movement was in place, Brown may actually have delayed the achievement of civil rights. Relying on the Dynamic Court view of change, and litigating to produce significant social reform, may have surprising and unfortunate costs. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 2233-2239). Kindle Edition.

Turn — Courts don’t produce social change and suck resources , energy, and desire social movements that could actually accomplish change but who will now thing the problem is solved

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
Given the constraints and the conditions, the Constrained Court view is the more accurate: U.S. courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government. Problems that are unsolvable in the political context can rarely be solved by courts. As Scheingold puts it, the “law can hardly transcend the conflicts of the political system in which it is embedded” (Scheingold 1974, 145). Turning to courts to produce significant social reform substitutes the myth of America for its reality. It credits courts and judicial decisions with a power that they do not have. In contrast to this conclusion, it might be suggested that throughout this book I have asked too much of courts. After all, in all the cases examined, court decisions produced some change, however small. Given that political action appeared impossible in many instances, such as with civil rights in the 1950s, same-sex marriage in the 1990s, and reform of the criminal justice system tem more generally, isn’t some positive change better than none? In a world of unlimited resources, this would be the case. In the world in which those seeking significant social reform live, however, strategic choices have costs, and a strategy that produces little or no change and induces backlash drains resources that could be more effectively employed in other strategies. In addition, vindication of constitutional principles accompanied by small change may be mistaken for widespread significant social reform, inducing reformers to relax their efforts. In general, then, not only does litigation steer activists to an institution that is constrained from helping them, but also it siphons off crucial resources and talent, and runs the risk of weakening political efforts. In terms of financial resources, social reform groups don’t have a lot of money. Funding a litigation campaign means that other strategic options are starved of funds. In civil rights, while Brown was pending in June 1953, Thurgood Marshall and Walter White sent out a telegram to supporters of the National Association for the Advancement of Colored People asking for money, stating “funds entirely spent” (quoted in Kluger 1976, 617). Compare this to the half-million-dollar estimates of the cost of the freedom rides, largely due to fines and bail (Sarratt 1966, 337). Further, the legal strategy drained off the talents of people such as Thurgood Marshall and Jack Greenberg. As Martin Luther King, Jr., complained: plained: “to accumulate resources for legal actions imposes intolerable hardships ships on the already overburdened” (King 1963, 157). In the abortion field, reliance on the Court seriously weakened the political efficacy of pro-choice forces. After the 1973 decisions, many pro-choice activists simply assumed they had won and stopped their pro-choice activity. According to J. Hugh Anwyl, at one time executive director of Planned Parenthood of Los Angeles, pro-choice activists went “on a long siesta” after the abortion decisions (quoted in Johnston 1977, 1). This view was concurred in by a National Abortion Rights Action League activist, Janet Beals: “Everyone assumed that when the Supreme Court made its decision in 1973 that we’d got what we wanted and the battle was over. The movement afterwards lost steam” (quoted in Phillips 1980, 3).’ Jackson and Vinovskis found that, after the decisions, , “state-level pro-choice groups disbanded, victory seemingly achieved” (Jackson and Vinovskis 1983, 73). By 1977, a survey of pro-choice and anti-abortion abortion activity in thirteen states nationwide found
that abortion rights advocates cates had failed to match the activity of their opponents (Johnston 1977, 24). The political organization and momentum that had changed laws nationwide dissipated in celebration of Court victory. The pro-choice movement was harmed in a second way by its reliance on Court action. The most restrictive version of the Hyde Amendment, banning federal funding even for most medically necessary abortions, was passed with the help of a parliamentary maneuver by pro-choice legislators. Their strategy, as reported the following day on the front pages of the New York Times and Washington Post, was to pass such a conservative bill that the Court would have “no choice” but to overturn it (Tolchin 1977; Russell 1977). This reliance on the Court was totally unfounded. With hindsight, Karen Mulhauser, former director of NARAL, suggested that “had we made more gains through the legislative and referendum processes, and taken a little longer at it, the public would have moved with us” (quoted in Williams 1979. 12). By winning a Court case “without the organization needed to cope with a powerful opposition”  (Rubin 1982, 169), pro-choice forces vastly overestimated the power and influence of the Court. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 5932-5939). Kindle Edition.

Turn – court victories suck movements into litigation where their legislative goals are crushed

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
If this is the case, then there is another important way in which courts affect social change. It is, to put it simply, that courts act as “fly-paper” for social reformers who succumb to the “lure of litigation.” If the constraints of the Constrained Court view are correct, then courts can seldom produce significant social reform. Yet if groups advocating such reform continue to look to the courts for aid, and spend precious resources in litigation, then the courts also limit change by deflecting claims from substantive political battles, where success is possible, to harmless legal ones where it is not. Even when major cases are won, the achievement is often more symbolic that real. Thus, courts may serve an ideological function of luring movements for social reform to an institution that is structurally constrained from serving their needs, providing only an illusion of change.’ Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 5985-5990). Kindle Edition.

Court decisions only suck litigants into the courts, they do not trigger social reform

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
In sum, the Dynamic Court view’s claim that a major contribution of the courts in civil rights was to give the issue salience, press political elites to act, prick the consciences of whites, legitimate the grievances of blacks, and fire blacks up to act is not substantiated. In all the places examined, where evidence supportive of the claim should exist, it does not. The concerns of clear attribution, time, and increased press coverage all cut against the thesis. Public-opinion evidence does not support it and, at times, clearly contradicts it. The emergence of the sit-ins, demonstrations, and marches, does not support port it. While it must be the case that Court action influenced some people, I have found no evidence that this influence was widespread or of much importance to the battle for civil rights. The evidence suggests that Brown’s major positive impact was limited to reinforcing the belief in a legal strategy for change of those already committed to it. The burden of showing that Brown accomplished more now rests squarely on those who for years have written and spoken of its immeasurable importance. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 2251-2253). Kindle Edition.

Court protection of child’s criminal rights not enforced and doesn’t spill over to legal or social change in the area of juvenile justice

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
The Rights of Juvenile Defendants Traditionally, juvenile justice has lacked the due process protections of “normal” adversarial proceedings. Rather than primarily attempting to ascertain t guilt, juvenile courts were based on the rehabilitative notion of helping the juvenile. In re Gault (1967), however, the uncontested facts questioned this noble intention. Gerald Gault, age fifteen, was charged with making a phone call to an older female neighbor of the “irritatingly offensive, adolescent, cent, sex variety” (In re Gault 1967, 4). He (his parents) had received very short notice of the proceedings, was not informed of any rights he might have, was not represented by counsel, and was given no opportunity to cross-examine examine the woman, who was not present at the trial. As a result of the court proceedings, Gault was committed to the State Industrial School until age twenty-one. The decision was upheld throughout the state court system. In the Supreme Court, the case was used as a vehicle to revamp the juvenile justice system. The Court noted that if Gault had been an adult the maximum sentence that could have been imposed was a $50 fine or imprisonment for not more than two months (1967, 9). “Under our Constitution,” Justice Fortas wrote for the Court, “the condition of being a boy does not justify a kangaroo court” (1967, 28). Rather, the Due Process Clause of the Fourteenth Amendment required that when confinement to an institution was a possible outcome of a juvenile proceeding, “the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent resent the child” (1967, 41). In addition, the Constitution required that written ten notice of charges be sent with sufficient time for preparation, that the privilege against self-incrimination be allowed, and that “absent a valid confession,” commitment cannot be sustained without “sworn testimony subjected to the opportunity for cross-examinations” (1967, 33, 55, 57). Entirely revamping judicial proceedings, the “revolutionary dimensions” of the decision are clear (Lefstein, Stapleton and Teitelbaum 1969, 559). Dimensions, however, are not the same as practice. The question that needs to be answered is how juvenile court procedures changed. While proponents of the Dynamic Court view would be busy popping champagne corks in celebration of the creation of a constitutional juvenile justice system, Constrained strained Court view supporters would predict little change. In the middle, proponents of the constraints and conditions would suggest that change would be variable, depending on the presence of one of the four specified conditions. What do the data show’? Studies completed in the years immediately following Gault found, in the words of the largest study, that “failure to comply with Gault’s rules was widespread,” resulting in “sometimes flagrant disregard of constitutional rights(Lefstein et al. 1969, 527, 530).21 These findings are rather dismal in terms of Court efficacy, but perhaps their time-frame was too short to measure slow but steady change. Recent studies, however, show that time has done little to alter this picture. Reviewing the survey data on the presence of counsel sel in 1989, Feld concluded that “less than fifty percent of juveniles adjudicated delinquent receive the assistance of counsel to which they are constitutionally entitled” (Feld 1989, 1188-89). In his own Minnesota study, Feld found “enormous county-by-county variations” in the percentage of juveniles represented by counsel, ranging from 90 percent down to 10 percent (Feld 1989, 1200). Similarly, in a six-state study based on 1984 data Feld found that “nearly twenty years after Gault held that juveniles are constitutionally entitled to the assistance of counsel, half of the jurisdictions in this study are still not in compliance” (Feld 1988, 416). There is one additional finding that is so startling that it requires mention. Several studies, including both Feld’s Minnesota and six-state study, have found that the presence of counsel actually results in stiffer sentences for juveniles! Holding the offense constant, Feld reported in his six-state study that “youths with lawyers receive more severe dispositions than do those without lawyers” (Feld 1988, 405).22 The fact that Gault has been so unevenly evenly implemented may be a blessing in disguise for juvenile defendants. The finding that Gault has been unevenly implemented leaves both the Dynamic and the Constrained Court views with little analytic power, for each can explain only part of real-world practice. The conditions, however, offer a more powerful explanation. They point to the interests of the main participants pants in the juvenile justice system. In general, for them, the notion of the juvenile system as rehabilitative rather than adjudicative has remained. Thus, without outside pressure, they have done little to change. More specifically, three of the four conditions (all but the market) are potentially applicable. However, there have not been outside actors either offering incentives for compliance or imposing costs for non-compliance. Defense lawyers, even when present, have not provided such pressure. This seems to be because they share the rehabilitative ideal of the juvenile system. Horowitz notes that “many lawyers have a marked distaste for helping juveniles to ‘beat a case’ ” (Horowitz 1977, The condition that is left is the interest of the chief official or administrator, the juvenile judge. That juvenile judges have the power to implement Gault is clearly shown by the large variation in its implementation. When judges are supportive of the decision, implementation occurs. Many juvenile judges, however, remain wedded to the rehabilitative ideal rather than the adversarial principle: “the oft-reiterated belief of many judges [is] that the child’s best interests are not served by an adversary hearing” (Horowitz 1977, 188). Even when lawyers are present, there is “frequent pressure from juvenile-court judges on lawyers to insist less on their clients’ rights and more on what they regard as their welfare” (Horowitz 1977, 190). Not wishing to offend the judge, and thus harm their clients, juvenile defense lawyers might not act as aggressive defenders fenders of their clients’ constitutional rights. Indeed, an aggressive lawyer who is not attuned to this atmosphere may actually harm his or her client. It may well be that this widely held attitude explains why juveniles with counsel receive stiffer sentences than those who lack counsel and who thus do not formally fight the rehabilitative ideal. To sum up, implementation of Gault has varied because the Court lacks the tools to enforce its decree and the one condition present that allows for implementation also allows for little or no change. Many juvenile court judges can and do simply ignore the decision or actively discourage juveniles from exercising their rights. Judges, too, can follow the letter but not the spirit of the law. Announcing harsher penalties when counsel is present, or pressuring counsel to act less adversarially, mitigates or vitiates the constitutional rights at stake. As Feld puts it, “organizational pressure to cooperate, judicial hostility t toward adversarial litigants, role ambiguity created by the dual goals of rehabilitation and punishment, reluctance to help juveniles `beat a case,’ or an internalization of a court’s treatment philosophy” all lead to a “judicial revolution” in the treatment of juvenile defendants that has yet to succeed (Feld 1988, 395). Without a change of philosophy and belief among juvenile court judges, their prac
tice is unlikely to change. And the Court, of course, lacks the ability to bring about such change. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 4370-4375). Kindle Edition.

Court decisions not implemented, massive delays kill solvency

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
The Structural Constraints of Courts In the preceding pages I have discussed political leadership and cultural and social beliefs as obstacles to court-ordered civil rights. The Supreme Court, acting alone, could not hope to overcome these constraints. However, they are not specific to courts. They exist as barriers to all change, including that produced by segments of state or national government. I turn now to the particular constraints built into the American judicial system, constraints that made courts singularly ineffective institutions for successfully producing direct change in civil rights. The Constraints of the Legal Bureaucracy Proponents of the Constrained Court view suggest that specialization, expertise, and political connections are lacking in courts and are crucial for successful implementation of significant social reform. Given the political and social opposition to civil rights, and the complexity of the issue, the need for such knowledge and skills was high. It appears, however, that courts are not equipped to deal with the complex issues involved in areas such as civil rights. On the one hand, many issues involve a sophisticated understanding of a whole range of social processes. In education these might include the learning process itself, the role of families, and the community view of the schools. one commentator supportive of civil rights has noted, the courts have “lacked an awareness of the complex, multifaceted processes of education” and have “disregarded the development of children and the perspectives of families and communities” (Lightfoot 1980, 4). Court decisions, then, may not have been implemented or, if implemented, may not have worked, because they were not appropriate to the problem. Similarly, judges may not be aware of, or be able to deal with, the political trade-offs necessary to implement any public policy. Judges are not supposed posed to telephone politicians, school administrators, local businessmen, or others, and cut a deal. Their decisions, therefore, are likely to overlook political realities that are crucial for implementation. In this regard, the U.S. Commission on Civil Rights found that community preparation and participation in planning, key elements to successful school desegregation, were utterly lacking in court-ordered desegregation plans (USCCR 1959, 309-10). 10). Judge Brown, writing on the record after the issuance of the first HEW guidelines lines implementing Title VI, summed up these problems: These executive standards, perhaps long overdue, are welcome … [without them] the Federal judge [was putt in the middle of school administrative problems for which he was not equipped…. By the 1964 Act and the action of HEW, administration is largely where it ought to be-in the hands of the Executive e and its agencies with the function of the Judiciary confined to those rare cases presenting justiciable, not operational, questions. (Price v. Dennison Independent dependent School District 1965, 1013-14)11 The record of court attempts at school desegregation before 1964 demonstrates that effective implementation of civil rights decisions requires information and knowledge that judges don’t have and political compromises that they ought not to make. Thus, courts were simply not equipped to achieve direct results in civil rights. Delay The judiciary, like other large political institutions, is afflicted with many bureaucratic problems. However, as proponents of the Constrained Court view argue, the constraints imposed by the structure and process of the legal bureaucracy make courts a singularly ineffective institution in producing significant n social reform. Among these constraints is the inability to respond quickly. The time between the initiation of a suit, the exhaustion of all appeals, peals, and the issuance of a final decree can be years. This is no less the case when judges act in good faith. Delay is built into the judicial system and it serves to limit the effectiveness of courts. Delay occurs for many reasons. One is overloaded court dockets. During the 1950s and 1960s, the Fifth Circuit, responsible for most of the South, had the nation’s most congested dockets Appeals to that court were naturally delayed. Second, the judicial system allows for many appeals and will bend over backwards to hear a claim.21 Numerous appeals can serve as a tactic to delay final decision. Another reason for delay is the complicated nature of many civil rights suits. Questions of whether the suit is properly a class action, whether local remedies have been exhausted, or whether a different court is the more appropriate forum can keep cases bouncing around lower courts for years. Even if a lower court enjoins certain actions as discriminatory, it may stay the injunction pending appeal. Fourth, higher courts rarely order action. Normally, they remand to the lower court and order it to act. The time involved here, even assuming good faith, can add up. Finally, if a final order does not have a direct effect, if the discrimination is not remedied, died, the plaintiff’s only judicial remedy is to return to court and re-start the process. Opponents of civil rights were well aware of the inherent delays of the judicial system. A popular Southern saying, “litigate and legislate,” shows awareness of the slowness of judicial proceedings (quoted in Rodgers and Bullock 1972, 72). Soon after Brown was decided, the attorney general of Mississippi (later governor), Coleman, remarked: “We could keep the Court busy for years” (quoted in Sarratt 1966, 181). And years later Judge Wisdom’s comment that “we shall not permit the courts to be used to destroy or dilute the effectiveness of the Congressional policy expressed in Title VI” (U.S. v. Jefferson County Board of Education 1966, 859-60) bears witness to this structural reality. Even if political leaders had no intention of following adverse court decisions, the confrontation could be postponed for years. Examples of delay in final judgments abound.22 In higher education, the average case took about two and a half years from initial claim to final judgment USCCR 1961a, 269). Final judgment, of course, did not guarantee admission or, later, graduation. In elementary and secondary education, delays lays were legion. Among the most noteworthy were Briggs v. Elliott and Davis v. Prince Edward County, two of the original school desegregation cases, commenced in 1951 and 1952 respectively, which were still being litigated gated in 1963. Other cases noteworthy for seemingly interminable litigation include Singleton v. Jackson Municipal Separate School District, in which approximately thirty opinions and orders were issued over a seven-year period, and U.S. v. Montgomery County Board of Education (1969), in which there were seventy-seven docket entries between 1964 and 1969. And the U.S. Commission on Civil Rights found that delay in reaching final decisions in the courts was a major reason for the failure to end discrimination against blacks in the field of voting (USCCR 1963a, 25). Perhaps the most remarkable example is the eight-year effort of Alabama to incapacitate the NAACP. While Alabama eventually lost, it managed to effectively paralyze the NAACP in Alabama for eight crucial years. In sum, delay is built into the judicial system. Even when all parties act in good faith, judicial proceedings can drag on for years. This structural constraint of courts made them particularly poor institutions for directly affecting civil rights.
Discretion, interpretation, and bias solvency
Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
The American judicial system vests considerable discretion in lower-court court judges. Only rarely do appellate court judges issue final orders. In almost most all cases, they remand to the lower court for issuance of the final decree. This leaves lower-court judges with a great deal of discretion. Review can be gained only on appeal, which further delays final action. This pattern is particularly pronounced in federal-state court relations. Studying this relationship, ship, Beatty found that “one of the most unique characteristics of our dual judiciary is the ability of state courts to avoid, delay or evade the mandates of the Supreme Court” (Beatty 1972, 260). The inability of appellate courts to readily review lower-court action was a principal tool used by some lower courts to delay civil rights (Note 1963, 100). Discretion is, of course, subjective and it is often difficult to characterize abuses. Different judges react differently to similar cases and this is inevitable. table. While there is some awareness of the role of discretion in courts, its existence is more often denied or hidden. Haines, for example, writes of New York City’s efforts to prepare annual comparisons of how different judges handled similar cases in 1914 and 1915: “The results showing to what extent justice is affected by the personality of the judge were so startling and so disconcerting that it seemed advisable to discontinue the comparative tables of the records of the justices” (Haines 1922, 96). Yet at times the abuse of discretion becomes so obvious that there is no hesitancy to so characterize it. Many lower-court judges systematically and continually abused their discretion to thwart civil rights. At the height of the 1960 New Orleans school crisis, Congressman Otto Passman, addressing the Louisiana legislature, summed up lower-court reactions: “It is not pleasant to contemplate, but it appears to be true that at least some federal judges take their orders directly from the Supreme Court” (quoted in Sarratt 1966, 246). The awareness of the power of discretion, and the use to which some judges would put it, led Southern segregationists to fight to vest control of civil rights in lower-court judges. Arguing for South Carolina in Brown II, S. E. Rogers asked for district court control, admitting in response to questions that this would result in no desegregation, “perhaps not until 2015 or 2045” (quoted in Peltason 1971, 16). Another attorney, out of court, commented that “local judges know the local situation and it may be 100 years before . . . ]civil rights is] feasible” (quoted in Sarratt 1966, 200). On the state-federal level, state court evasion of Supreme Court mandates was “at least twice as high during the 1960s as in either the 1930s or the 1940s” (Beatty 1972, 283). In areas such as civil rights where feelings run high, the discretion accorded lower-court judges virtually insures its abuse. There are many ways in which discretion can be abused (Murphy 1959a). One, of course, is delay, referred to earlier. Another is outright refusal to follow the law. Lower-court judges routinely upheld statutes designed to evade compliance with Supreme Court mandates. As late as 1966 Judge Scarlett of the Federal District Court for the Southern District of Georgia attempted tempted to reverse Brown by declaring that blacks were not intelligent enough to go to school with whites (discussed in Stell v. Board of Education for City of Savannah 1967). A third way was to read the cases as narrowly as possible. In Briggs v. Elliott, for example, the federal district court held: “The Constitution, , in other words, does not require integration. It merely forbids discrimination” crimination” (1955, 777). While this was a technically correct reading of Brown, its impact was to allow segregation to continue as long as defendants could allege that they were not discriminating, that segregation resulted from the “free choice” of all concerned. Another abuse of discretion, discussed above, was to find that local conditions prevented implementation of the law at the present time. One way in which this was done was for private groups to encourage violence, or at least not discourage it, and then use the violence to show that conditions were not appropriate for civil rights (Peltason 1971, 159). Finally, courts could and did refuse to follow the logic of Brown into other areas. While this was legally defensible before the Supreme Court so ruled, it was clearly an abuse of discretion after the Court applied Brown across the board. The tools of abuse of discretion-delay, and narrow interpretation (or purposeful misinterpretation)-can be effectively harnessed by biased judges. Unfortunately, throughout the South there were many biased judges (Peltason 1971; USCCR 1969, 39-46; Note 1963). These were judges who made their decisions based on their own segregationist views and not on the law. And given the structure of the judicial system, such judges could delay civil rights for years. Southern judges were in a difficult position. The “fifty-eight lonely men” (Peltason 1971) who formed the federal judiciary in the Southern states were required to dismantle a social system they had grown up with and were part of. A non-biased judge who felt duty-bound to follow the law could never forget, Peltason concludes, that “any action of his against segregation will threaten his easy and prestigious acceptance by the community” (Peltason 1971, 9). Even as pro-civil-rights a judge as John Minor Wisdom was sympathetic, pathetic, finding it “not surprising that in a conservative community a federal judge may feel that he cannot jeopardize the respect due the court in all of his cases” by vigorously supporting civil rights (Wisdom 1967, 419). Even with the best of judges, civil rights cases reflected the “customs and mores of the community” (Wisdom 1967, 418). It is no surprise, then, that study of hundreds of cases in Southern federal district courts found judges influenced by their social and political environment (Vines 1964). The severity of the problem can best be understood by a few examples .21 Judge Elliott of the Federal District Court for the Middle District of Georgia did not want “pinks, radicals and black voters to outvote those who are trying to preserve our segregation laws” (quoted in Note 1963, 101 n.71). Federal District Judge Cox, of the Southern District of Mississippi, characterized the freedom riders as “counterfeit citizens from other states deliberately seeking to cause trouble here” (Note 1963, 101 n.71). Speaking from the bench in March 1964, he referred repeatedly to black voter-registration applicants as “a bunch of niggers” who were “acting like a bunch of chimpanzees” (quoted in Southern Regional Council 1964, 19-20).24 Federal Judge Armistead stead Dobie of the Fourth Circuit saw civil rights as influenced by “a foreign Communistic anthropologist” (quoted in Peltason 1971, 23), an obvious attack tack on Swedish sociologist Gunnar Myrdal whose classic work on segregation in the United States, An American Dilemma, was cited in footnote 11 in Brown. Judge Dawkins of the Federal District Court in Shreveport, Louisiana, ana, defended his enjoining the U.S. Commission on Civil Rights from holding hearings on alleged voter discrimination in his district in 1959 by stating, “lilt’s all part of the game” (quoted in Peltason 1971, 133). In the Dallas school desegregation case, started in 1955 and still pending in 1960, in which the federal district court was reversed six times, Judge Davidson complained that the “white man has a right to maintain his racial integrity, and it can’t be done so easily in integrated schools” (quoted in Sarratt 1966, 201). He also warned agai
nst the perils of breaching segregation: “When the President’s guard was shot, when the halls of Congress were shot up, they were not from Negroes that were raised in the South. They were from the integrated people of Puerto Rico” (quoted in Peltason 1971, 121). State judges were, if anything, more biased. Chief Judge J. Edwin Livingston of the Alabama Supreme Court, speaking in 1959 to several hundred students and business leaders, announced: “I’m for segregation in every phase of life and I don’t care who knows it…. I would close every school from the highest to the lowest before I would go to school with colored people” (quoted in Peltason 1971, 66). Alabama circuit judge Walter B. Jones wrote a column in the Montgomery Advertiser which he devoted to the “defense of white supremacy.” In those pages in June 1958 he told his readers that in the case against the NAACP, over which he was presiding, he intended to deal the NAACP a “mortal blow” from which it “shall never recover” (quoted in Peltason 1971, 65, 67). It is no wonder, then, that despite clear Supreme Court rulings, Alabama was able to keep the NAACP in litigation for eight years. As Leon Friedman, who talked with scores of civil rights lawyers in the South concluded, “the states’ legal institutions were and are the principal enemy” (Friedman 1965, 7). Biased judges posed a serious obstacle to civil rights in the South. Yet, as the Constrained Court view suggests, the very process by which judges are selected suggests that they will reflect the mores and beliefs of the dominant cultural and political leadership. The existence of biased judges was inevitable. table. Given the tools of discretion, delay, and interpretation available to judges, resistance to Supreme-Court-ordered civil rights was to be expected. As Judge Wisdom put it, “difficulties in the judicial performance of inferior federal courts are built into the system (Wisdom 1967, 419; emphasis added). Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Location 1314). Kindle Edition.

Courts can’t produce significant social change – constitutional rights inherently limited, courts are not independent, courts discourage legislative social reform

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
The view of courts as unable to produce significant social reform has a distinguished pedigree reaching back to the founders. Premised on the institutional structure of the American political system and the procedures and belief systems created by American law, it suggests that the conditions required for courts to produce significant social reform will seldom exist. Unpacked, packed, the Constrained Court view maintains that courts will generally not be effective producers of significant social reform for three reasons: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of powers of implementation. The Limited Nature of Rights The Constitution, and the set of beliefs that surround it, is not unbounded. bounded. Certain rights are enshrined in it and others are rejected. In economic nomic terms, private control over the allocation and distribution of resources, the use of property, is protected (Miller 1968). “Rights” to certain minimums, mums, or equal shares of basic goods, are not. Further, judicial discretion is bound by the norms and expectations of the legal culture. These two parameters, , believers in the Constrained Court view suggest, present a problem for litigators pressing the courts for significant social reform because most such litigation is based on constitutional claims that rights are being denied.; An individual or group comes into a court claiming it is being denied some benefit, fit, or protection from arbitrary and discriminatory action, and that it is entitled to this benefit or that protection. Proponents of the Constrained Court view suggest that this has four important consequences for social reformers. First, they argue, it limits the sorts of claims that can be made, for not all social reform goals can be plausibly presented in the name of constitutional rights. For example, there are no constitutional rights to decent housing, adequate levels of welfare, or clean air, while there are constitutional rights to minimal governmental interference in the use of one’s property. This may mean that “practically significant but legally irrelevant policy matters may remain beyond the purview of the court” (Note 1977, 436). Further, as Gordon don (1984, 111) suggests, “the legal forms we use set limits on what we can imagine as practical outcomes.” Thus, the nature of rights in the U.S. legal system, embedded in the Constitution, may constrain the courts in producing significant social reform by preventing them from hearing many claims. A second consequence from the Constrained Court perspective is that, even where claims can be made, social reformers must often argue for the establishment of a new right, or the extension of a generally accepted right to a new situation. In welfare rights litigation, for example, the Court was asked to find a constitutional right to welfare (Krislov 1973). This need to push the courts to read the Constitution in an expansive or “liberal” way creates two main difficulties. Underlying these difficulties is judicial awareness of the need for predictability in the law and the politically exposed nature of judges whose decisions go beyond the positions of electorally accountable officials. First, the Constitution, lawyers, judges, and legal academics form a dominant legal culture that at any given time accepts some rights and not others and sets limits on the interpretation and expansion of rights. Judicial discretion is bound by the beliefs and norms of this legal culture, and decisions that stray too far from them are likely to be reversed and severely criticized. Put simply, courts, and the judges that compose them, even if sympathetic to social reform form plaintiffs, may be unwilling to risk crossing this nebulous yet real boundary.’ Second, and perhaps more important, is the role of precedent and what Justice Traynor calls the “continuity scripts of the law” (Traynor 1977, 11). Traynor, a justice of the California Supreme Court for twenty-five years, Chief Justice from 1964 to 1970, and known as a judge open to new ideas, wrote of the “very caution of the judicial process” (1977, 7). Arguing that “a judge must plod rather than soar,” Traynor saw that the “greatest judges” proceed “at the pace of a tortoise that steadily makes advances though it carries the past on its back” (1977, 7, 6). Constrained by precedent and the beliefs of the dominant legal culture, judges, the Constrained Court view asserts, are not likely to act as crusaders. Third, supporters of the Constrained Court view note, as Scheingold (1974) points out, that to claim a right in court is to accept the procedures and obligations of the legal system. These procedures are designed, in part, to make it difficult for courts to hear certain kinds of cases. As the Council for Public Interest Law (CPIL) puts it, doctrines of standing and of class actions, the so-called political question doctrine, the need to have a live controversy, and other technical doctrines can “deter courts from deciding cases on the merits” (CPIL 1976, 355) and can result in social reform groups being unable to present their best arguments, or even have their day in court. Once in court, however, the legal process tends to dissipate significant social reform by making appropriate remedies unlikely. This can occur, McCann (1986, 200) points out, because policy-based litigation aimed at significant social reform is usually “disaggregate(di … into discrete conflicts among limited actors over specific individual entitlements.” Remedial decrees, it has been noted, “must not confuse what is socially or judicially desirable with what is legally required” (Special Project 1978, 855). Thus, litigation seldom deals with “underlying issues and problems” and is “directed more toward symptoms than causes” (Harris and Spiller 1976, 26). Finally, it has long been argued that framing issues in legally sound ways robs them of “political and purposive appeal” (Handler 1978, 33). In the narrow sense, the technical nature of legal argument can denude issues of emotional, widespread appeal. More broadly, there is the danger that litigation tion by the few will replace political action by the many and reduce the democratic nature of the American polity. James Bradley Thayer, writing in 1901, was concerned that reliance on litigation would sap the democratic process of its vitality. He warned that the “tendency of a common and easy resort” to the courts, especially in asking them to invalidate acts of the democratically accountable branches, would “dwarf the political capacity of the people” (Thayer 1901, 107). This view was echoed more recently by McCann, who found that litigation-prone activists’ “legal rights approach to expanding democracy has significantly narrowed their conception of political action itself” (McCann 1986, 26). Expanding the point, McCann argued that “legal tactics not only absorb scarce resources that could be used for popular mobilization … [but also] make it difficult to develop broadly based, multiissue grassroots roots associations of sustained citizen allegiance” (McCann 1986, 200). For these reasons, the Constrained Court view suggests that the nature of rights in the U.S. constrains courts from being effective producers of significant social reform. Thus, 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. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 268-269). Kindle Edition

Change did not occur in criminal procedures even after the Supreme Court protected rights

Gerald Rosenberg, 2008, professor of political science and lecturer in law, University of Chicago, . The Hollow Hope: Can Courts Bring About Social Change, Kindle edition, page number at end of card.
In the decisions that I have examined in this chapter, reformers attempted to dramatically change police and courtroom practices and prison conditions. They did so by litigating, focusing on rights and arguing that prison officials, the police, and the courts must inform criminal defendants of a wide array of rights and refrain from certain practices. And they won many cases. The Court, however, was unable to achieve its stated goals because political support was often lacking and seldom were the conditions necessary for change present. What was overlooked was that organizations, be they prison systems, police departments, or lower courts, are often unwilling to change. Watching over 1,600 criminal court cases a decade and a half after the “revolution,” Feeley found that “constitutional changes notwithstanding, the lower courts are reluctant to treat formally that which has traditionally been treated informally, and they refuse to consider solemnly that which has usually been taken lightly” (Feeley 1979, 8). For many officials, what the Supreme Court did simply “did not matter much” (Washy 1976, 221). Of the more than 1,600 cases that Feeley saw, the “overwhelming majority … took just a few seconds” and “the courtroom encounter was a ritual in which the judge ratified a decision made earlier” (Feeley 1979, While some change has occurred, it depended more on the interests of non-Court actors, especially politicians and administrators, than on the courts. The revolution failed. Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring About Social Change? Second Edition (American Politics and Political Economy Series) (Kindle Locations 4643-4651). Kindle Edition.