The Hollow Hope: Can Courts Bring About Social Change?was written by Gerald N. Rosenberg

Gerald N. Rosenberg

Gerald N. Rosenberg is a University of Chicago political science and law professor, and the author of the 1991 controversial book The Hollow Hope which won the Gordon J. Laing Award from the University of Chicago Press in 1993. He holds a law degree from The University of Michigan and a Ph.D....

 and published in 1991. A highly controversial work, it produced labels ranging from "revolutionary" to "insulting." A Second Edition of the book was published in 2008 by the University of Chicago Press

University of Chicago Press

The University of Chicago Press is the largest university press in the United States. It is operated by the University of Chicago and publishes a wide variety of academic titles, including The Chicago Manual of Style, dozens of academic journals, including Critical Inquiry, and a wide array of...

 (ISBN 9780226726717).

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

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 is able to effect widespread social change. Naturally, such a drastic departure from conventional beliefs drew the ire of many critics, both within and beyond 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

Brown v. Board of Education

Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...

and Roe v. Wade

Roe v. Wade

Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...

as examples. The Constrained Court view, on the other hand, holds that because of the existing constraints imposed upon the Court by the United States Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 and the United States Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, 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 Brown v. Board of Education of Topeka (1954) and Roe v. Wade (1973), 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

Executive (government)

Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...

 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 Alexander Hamilton

Alexander Hamilton

Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

 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 rights, pro-choice, 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 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 Civil Rights Act of 1964

Civil Rights Act of 1964

The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...

 that the percentage begins to increase annually. Similarly, in looking at Roe v. Wade, he finds that the annual number of legal abortions did not seem to be greatly affected by the Court's decision.

Criticism

There is a great deal of criticism leveled at The Hollow Hope. Critics maintain that Rosenberg's argument ignores the implications of court decisions on future actions that created more direct change. 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. However, these same critics maintain that Rosenberg relies on faulty assumption, such as the duality of man.

External links

• A book review in JSTOR http://www.jstor.org/stable/1964174 The American Political Science Review, Vol. 86, No. 3 (Sep., 1992), pp. 812–813.