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The Hollow Hope: Can Courts Bring About Social Change?

by Gerald N. Rosenberg

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1092201,579 (3.86)1
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… (more)
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Is it possible for the courts to bring about political and social reform?

Efforts to use the courts to bring about significant changes in social issues such as civil rights, abortion, and women’s rights were largely futile, asserts the author, suggesting that the courts are not the real instrument of social change. Rather, conscious deliberation and choice lie at the center of moral issues and social change.

Comparing the Constrained Court [weak, ineffective, powerless] and the Dynamic Court [vigorous, powerful, proponents of change], the author suggests that change from the courts is dependent upon the bounded nature of constitutional rights, the lack of independence from other branches of the government in order to bring about significant social reform, and the lack of the tools to develop appropriate policies and implement decisions regarding social reform.

A study of Brown vs. the Board of Education [1954] shows that the court’s decision had virtually no effect in actually implementing its decision. In fact, it took several actions outside of the court for school segregation to become the norm. First, Congress passed the Civil Rights Act of 1964, followed the next year by the Voting Rights Act and the Elementary and Secondary Education Act. The result of these actions was that significant progress in implementing the decisions of the Brown case took place. Following the 1954 decision, there was negligible change in desegregating schools; when, in 1965, the Department of Health, Education, and Welfare tied funding to desegregating the schools, the move to desegregate was swift.

The text, supplemented with graphs, tables, and charts, also includes several appendices, case references, notes, and other references. Sections include Civil Rights, Abortion, The Environment, Reapportionment, and Criminal Law, and Same-Sex Marriage.

Readers may find the limited power of the court to be a bit surprising, but there is much to consider for those interested in making changes to current policy.

Recommended. ( )
  jfe16 | Oct 30, 2020 |
The title asks "Can Courts Bring About Social Change?", and Rosenberg does not pull any punches in his answer: "No". And he makes this case with reference to what is considered to be the judiciary's proudest moment: school desegregation in the wake of Brown v. Board of Education.

Or should we say, the lack of desegregation. As Professor Rosenberg indicates, the most striking thing about the years following Brown is just how little impact it had. In 1954, the year Brown was decided, .001% of Black schoolchildren the south attended integrated schools (that *point* 001%, so 1 in 100,000). In 1958, that had risen to .13%, and by 1962 it was a whopping .45% -- so still, less than one-half of one percent. Desegregation didn't begin in earnest until Congress passed the Civil Rights Act and basically began dangling huge sums of money in front of local school boards as an incentive.

Of course, many argue that Brown's value was symbolic or galvanizing in increasing the pressure of the civil rights movement. Obviously this sort of causal chain is harder to prove or disprove, but Rosenberg makes a game effort, examining media coverage and rhetoric in both the White and Black community to try and see just how influential Brown was (he concludes that, at least at the time of the decision, far less than commonly presumed).

One does not have to follow Rosenberg all the way down his road to find his argument provocative and worth pondering. Indeed, when I assign it to my students, this is a book that always gets a rise out of everyone -- but also causes more than a few to remark that it has caused them to really rethink their beliefs and examine the law of this era with a more critical eye. That's the mark of a piece of scholarship that is justly influential, and The Hollow Hope is well-deserving of its place as one of the most important books on the American judiciary of the past 50 years. ( )
  schraubd | Feb 5, 2012 |
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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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