As part of our interminable but hopefully interesting series about judicial review, it may be worth considering Gerald Rosenberg’s The Hollow Hope, invoked by Paul and now out in a new edition. It’s not, exactly, that I disagree with Rosenberg’s central argument. Indeed, if you boil down Rosenberg’s claim to its central essence — that the courts, acting alone against hostile and powerful social actors, cannot generate social change — I agree 100%. To the extent that Rosenberg definitively repudiates the excessive faith in litigation held by some law students who went to school in the shadow of the Warren Court, his book is valuable. To a political scientist, however, his claims that courts are severely constrained in their powers are much less surprising. Moreover, overly simplistic way in which he thinks about causation means that his argument is completely inadequate to prove his concluding assertion that the courts are “flypaper” that are almost always a waste of progressive resources.
Consider, first of all, the way in which Rosenberg attempts to measure the indirect impact of Brown. He argues — convincingly — the Little Rock crisis generated much more media coverage than Brown. But I assume by now many of you have already spotted the obvious fallacy: Little Rock and Brown were not independent events. Without Brown, Faubus wouldn’t have had to attempt to nullify federal law and force Eisenhower to send the
Big Red One Screaming Eagles into Little Rock. And so while it’s true that the Civil Rights Act was much more effective at ending desegregation than Brown, it’s also highly unlikely that it would have had the necessary political support in 1964 had the Court not forced the issue. Rosenberg’s requirement that causation be immediate and direct is evidently going to produce false negatives.
Even more problematic, his assumption that institutions have power only if they force other institutions to do things they don’t want to do isn’t very appropriate to a separation-of-powers system, which almost always requires significant collaboration. Consider his striking graph showing that there was virtually no desegregation in the Deep South until 1965. This is an accurate inference as far as it goes — the courts aren’t going to have much of a direct impact in cases where their directives require ongoing enforcement by extremely hostile actors. But Rosenberg also shows (albeit much more quietly) that Brown did have an immediate and significant impact in border states where political elites were much less committed to apartheid. But, often, attempts to generate social change are much more analogous to the situation in the border states: you have some political elites committed to the status quo, some who are committed to change, and a crucial third group who don’t really care how a divisive issue is resolved as long as they don’t have to take responsibility for it. The fact that the political cover provided by courts in such situations doesn’t represent fully “independent” power is beside the point. The courts in such situations to do have real power, and do provide real leverage for groups seeking social change. (And, of course, in situations like #1 there probably aren’t going to be good short-term political options in any institutional forum. What exactly was the alternative to litigation in 1954 — lobbying the Alabama legislature? Hoping that Southern senators would generously agree not to filibuster?) To assess the power of institutions acting alone isn’t the right standard to apply to a Madisonian system.
And, returning to the issue at hand, same-sex marriage in many cases is going to be the second type of case — legislative majorities that would be unwilling to initiate same-sex marriage rights have proven willing to go along with judicial holdings requiring such rights. So far litigation has produced stable same-sex marriage rights in three states, and Iowa is overwhelmingly likely to be a fourth (and, at worst, will have same-sex marriage until 2014, with each passing year making repeal less likely.) While legislation without judicial intervention is come up with bupkis. To conclude that the courts are “flypaper” that generally cannot make a meaningful contribution to social change is therefore clearly erroneous.