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The Hollow HopeBackground "The Hollow Hope: Can Courts Bring About Social Change?" was written by Gerald N. Rosenberg and published in 1991. A highly controversial work, it produced a slew of labels ranging from "revolutionary" to "insulting." Basic Thesis and Controversy In his book, Gerald Rosenberg questions the validity of the commonly accepted axiom that the Supreme Court of the United States is a judicial body that is able to affect widespread social change. Naturally, such a drastic departure from conventional beliefs drew the ire of many critics, within and without the academia. Dynamic Court and Constrained Court Rosenberg examines two views of the United States Supreme Court: the view of the Dynamic Court and the view of the Constrained Court. The Dynamic Court view maintains that the United States Supreme Court is indeed capable of affecting widespread change, often citing cases such as Brown v. Board and Roe v. Wade as example. The Constrained Court view, on the other hand, holds that because of the existing constraints imposed upon the Court by the United States Constitution and the United States Congress, the Court is unable to accomplish significant change. Rosenberg sides largely with the Constrained Court view. He studies several landmark cases that have been handed down from the Court, such as the 1954 Brown v. Board of Education and the 1963 Roe v. Wade, and asserts that in each examined situation, the Court was largely unable to attain any tangible, empirically-measurable change. Rosenberg names three constraints that preclude the US Supreme Court from being truly effective, and arrives at the conclusion that although the Court is indeed capable of accomplishing significant change, such change can only occur when these three constraints are overcome. First Constraint The First Constraint is that the nature of constitutional rights precludes the Court from hearing or effectively acting on many significant social reform claims, and lessens the chances of popular mobilization. This Constraint can be overcome if there exists sufficient precedent for change. Second Constraint The Second Constraint is that the Court does not have sufficient independence from the legislative and executive branches to affect significant social reform. This Constraint can be overcome by securing support from substantial numbers in Congress and securing the support of the executive branch. Third Constraint The Third Constraint is that the Court does not have the power to develop necessary policy and implement decisions that could affect significant reform. Because, as Hamilton put it, the Court controls neither the sword (Executive branch) nor the purse (Legislative branch), it must rely on cooperation from the other two branches in order to enforce its decisions. This Constraint can be overcome either by securing support of citizens, or at least not having significant opposition from all citizens. Empirical Studies Rosenberg maintains that the efforts made by women's right, pro-abortion, and civil rights activists to use the courts to produce social change have not been very effective. To prove and support this claim, he examines a great deal of statistical information. In looking at the effects that 1954 Brown v. Board had on desegregation, for example, Rosenberg looks at the percentage of black schoolchildren attending mixed schools in the South in the years preceding this landmark decision, and the years following it. He finds that almost no measurable change had occurred in the ten years following this decision. Indeed, it is not until the 1965 Civil Rights Act that the percentage begins to increase annually. Similarly, in looking at the 1963 Roe v. Wade, he finds that the number of annual legal abortions did not seem to be greatly affected by the Court's decision. Criticism As mentioned before, there is a great deal of criticism levied at "The Hollow Hope." Critics maintain that Rosenberg did not disclose all available information, and that he ignored evidence that runs counter to his claim. US President Eisenhower, for example, specifically mentioned the 1954 Brown v. Board decision as the reason for action in Little Rock, Arkansas in a nationally-televised address. There are similar omissions in discussion of Martin Luther King, who cited Brown v. Board as a reason for mobilizing his followers in a speech given on a night preceding a boycott. Despite these drawbacks, many agree that Rosenberg presents a compelling argument against the common wisdom that the United States Supreme Court is a powerful judiciary body capable of introducing significant change. The lucid and effectively-written work is highly suggested reading for anyone with even a passing interests in American law.
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