Courts and Social Change, I
COURTS AND SOCIAL CHANGE, I
Since the mid-twentieth century, courts in the United States have been involved in many of the most important, difficult, and emotional issues of modern politics. From racial and gender equality to abortion to reform of criminal procedure, court decisions have ordered change on a broad scale on behalf of relatively powerless groups that have suffered from both past and present discrimination. Further, such litigation has often occurred, and appears to have been most successful, when the other branches of government have failed to act. Indeed, for many, part of what makes American democracy exceptional is that it includes the world's most powerful court system, protecting minorities and defending liberty, in the face of opposition from the democratically elected branches. But have courts contributed to social change?
Supreme Court decisions are not self-implementing. As alexander hamilton pointed out long ago, courts are particularly dependent on the actions of others. Hamilton argued in the federalist #78, that the judiciary "has no influence over either the sword or the purse … and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Without the support of government, or of citizens, court decisions ordering social change are unlikely to affect or change people's lives in important ways.
Those seeking social change through litigation often must rely on the Constitution, and the set of beliefs that surround it. The problem they face is that the Constitution is not unbounded; certain rights are enshrined in it and others are not. For example, there are no constitutional rights to decent housing, adequate levels of welfare or health care, or clean air, while there are constitutional rights to minimal governmental interference in the use of one's property. Lacking a strong constitutional foundation for their litigation, reformers often must push the courts to read the Constitution in an expansive or "liberal" way. This presents an additional obstacle to change due to 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. Thus, the nature of rights in the U.S. legal system, embedded in the Constitution, and the institutional reticence of judges, may constrain the courts in producing social change by preventing them from hearing or responding positively to many claims.
The result of these factors—lack of constitutional rights, lack of power of implementation, lack of judicial independence—is that courts are constrained from producing social change. Courts decisions can sometimes contribute to change, but only when there is broad political support for it. Consider, for example, one of the most famous Supreme Court decisions ordering social change on behalf of a relatively powerless group within society, brown v. board of education (1954).
Given the praise accorded to the 1954 Brown decision and its holding that race-based segregation of public schools was unconstitutional, examining its actual effects produces quite a surprise. The surprise is that a decade after Brown little had changed for most African American students living in the eleven states of the old Confederacy that had required race-based school segregation by law. For example, in the 1963–1964 school year, barely one in one hundred (1.2 percent) of these African American children was in a nonsegregated school. That means that for nearly ninety-nine of every one-hundred African American children in the South a decade after Brown, the finding of a constitutional right changed nothing.
Change came to school systems in the South in the wake of congressional and executive branch action. Title VI of the civil rights act of 1964 required the cut-off of federal funds to programs receiving federal monies where racial discrimination was practiced and the 1965 Elementary & Secondary Education Act provided a great deal of federal money to generally poor Southern school districts. This combination of federal funding and Title VI gave the executive branch a tool to induce desegregation when it chose to do so. When the U.S. Department of Health, Education, and Welfare began to threaten fund cut-offs to school districts that refused to desegregate, dramatic change occurred. By the 1972–1973 school year, over 91 percent of African American school children in the eleven Southern states were in integrated schools, up from 1.2 percent in the 1963–1964 school year.
Brown shows that U.S. courts by themselves can almost never be effective producers of social change. 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. Turning to courts to produce social change substitutes the myth of America for its reality. It credits courts and judicial decisions with a power they do not have.
Gerald N. Rosenberg
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Hamilton, Alexander; Madison, James; and Jay, John 1961 (1788) The Federalist. Clinton Rossiter, ed. New York: New American Library.
Galanter, Marc 1974 Why the 'Haves' Come Out Ahead: Speculations on the Limits of Social Change. Law & Society Review 9:95–160.
Horowitz, Donald L. 1977 The Courts and Social Policy. Washington, D.C.: Brookings Institution.
Mc Closkey, Robert G. 1994 The American Supreme Court, 2nd ed. Chicago: University of Chicago Press.
Rosenberg, Gerald N. 1991 The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.