COURTS AND SOCIAL CHANGE, II

The apparent accomplishments of the warren court led liberals to believe that the Supreme Court could contribute substantially to social change. They saw brown v. board of education (1954) as the precursor of the civil rights movement of the 1960s, and the Court's criminal procedure decisions such as miranda v. arizona (1966) as the driving force behind substantial changes in police practices. Even after the retirement of Chief Justice earl warren, roe v. wade (1973) suggested that the Court's decisions might lead to major changes in important social practices. The Court's decisions in the 1970s striking down statutes as sex discrimination similarly supported the view that the Court could be an important force for social change.

Overall, however, the burger court and the rehnquist court suggested to liberals that their enthusiasm for the courts might have been misplaced. The Burger Court initially invalidated capital punishment, but then endorsed state efforts to reestablish it. The Court rejected an early challenge to state laws making homosexual sodomy illegal in bowers v. hardwick (1986). It also eroded important Warren Court precedents, relieving school districts of further obligations to undo the effects of racial segregation, and refused to extend the Warren Court's criminal procedure holdings. By the 1990s, some liberal constitutional scholars thought, society's protection of the rights the Warren Court singled out was not significantly different from the situation that had existed in the early years of Warren's tenure.

These events led to a more subtle understanding of the Court's relation to social change. A long-standing view, going back to at least the early 1900s, is that the Court "follows the election returns": Court decisions simply ratify changes that have already taken place. A defender of this view would contend, for example, that major changes in the social role of women preceded the Court's gender discrimination decisions of the 1970s. The courts' withdrawal from the field of school desegregation occurred after changes in the political climate made school busing and other desegregation remedies increasingly unpopular.

Political scientist Gerald Rosenberg mounted an important attack on the view that the courts could play a large part in inducing major social changes. Rosenberg pointed out that no significant amount of desegregation occurred in the deep South until the mid-1960s, a decade after Brown, and took place only when Congress enacted civil rights statutes that threatened recalcitrant districts with the loss of federal financial assistance. Then, observing that the Court's abortion decisions succeeded in making abortions more easily available, Rosenberg argued that the courts' ability to contribute to social change varied depending on the kind of change involved. The segregation cases showed that the courts could do little when success depended on the cooperation of other political actors. Abortion was different, in Rosenberg's view, because the Court's decisions created a market that could be satisfied by private parties without government support.

Rosenberg's critics believed that he failed adequately to take account of indirect effects of court decisions. They argued that Brown had important effects, which Rosenberg minimized, on the spirits of civil rights activists, encouraging them to continue their activities because they knew that the Court agreed with their vision of the Constitution.

This criticism suggests that the courts can affect social change along two dimensions. Rosenberg focused on immediate effects on actual practices, while his critics focused on longer-range effects accomplished by changing the understandings people have of what the Constitution requires. The critics' position is that courts change the way people think about the Constitution, and those changed views then lead people to support new policies. Contrary to this position are public opinion surveys showing that the courts have relatively small effects on public understandings, because the public either does not know of what the courts have done, or misinterprets the messages the courts have attempted to send.

In response, scholars who believe the courts do have important effects have directed attention away from immediate effects on social practices and on beliefs about the Constitution. They argue that the courts have produced a general American "rights-consciousness." For some, this makes Americans willing to sue to vindicate what they believe are their rights far more frequently than is appropriate, generating an "adversary culture" that makes it more difficult to resolve conflicts both large and small. For others, rights-consciousness endorses a highly individualist way of thinking about social problems, which makes it more difficult for Americans to develop group-oriented theories and strategies that might be more effective in vindicating the very rights at issue.

Mark Tushnet
(2000)

Bibliography

Garrow, David 1994 Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education. Virginia Law Review 80:151–160.

Glendon, Mary Ann 1991 Rights Talk: The Impoverishment of Political Discourse. New York: Free Press.

Rosenberg, Gerald 1991 The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.

Tushnet, Mark 1984 An Essay on Rights. Texas Law Review 62:1363–1403.