by Gerald N. Rosenberg. Chicago: University of Chicago Press, 2008. 534pp. Cloth. $50.00. ISBN: 9780226726700. Paper $20.00. ISBN: 9780226726717.Reviewed by Wayne D. Moore, Department of Political Science, Virginia Polytechnic Institute and State University. E-mail: wmoore [at] vt.edu.
pp.1045-1054
The first edition of Gerald N. Rosenberg’s book, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?, received widespread praise and substantial criticism following its publication in 1991. As a testament to its lasting influence, this book received the 2003 Wadsworth Publishing Award from the Law and Courts Section of the American Political Science Association (the same section that sponsors this book review). That award honors books and articles at least ten years old that have had lasting impressions in the field of law and courts. THE HOLLOW HOPE truly is such a book.
The changes brought about by the second edition are primarily in the form of additions rather than revisions. The original introduction, first chapter, and chapters two through eleven, organized into three parts, are reprinted without any apparent changes. The second edition has a new two-page preface (accompanying that for the first edition), two completely new substantive chapters (12 and 13) on same-sex marriage, a lightly revised and renumbered conclusion (Chapter 14), and a new two-page epilogue. What we now get, in short, is the first edition plus Rosenberg’s analysis of cases involving same-sex marriage – including his treatment of the extent to which they support and/or require revision of the book’s original claims.
The second edition of THE HOLLOW HOPE, as with its precursor, is to be commended for what it is and what it does well. This book will remain a valuable resource for those studying roles that courts have played and may continue to play at the intersections of law and politics. The new chapters are informative and thought provoking. Most immediately, they will continue to provide useful perspectives for analyzing ongoing controversies involving rights of same-sex marriage. More generally, they will also be at the center of further analysis of relationships among constitutional and legal developments within states, across states, and at the federal level.
TThe book begins by offering a framework to explain when courts can and cannot bring about significant social change. Rosenberg emphasizes three constraints on judicial efficacy built into the structure of the American political system: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s limited enforcement powers. In Rosenberg’s view, these constraints are seldom overcome, and thus courts are generally ineffective in producing major social change. But he allows for the possibility that these constraints may be [*1046] overcome under some conditions: when there is ample legal precedent for change, there is support for legal change from substantial numbers in Congress and from the national executive, there is strong support or weak opposition from citizens, and when conditions otherwise support compliance with the judicial decisions at issue.
The text carried forward from the first edition of THE HOLLOW HOPE draws on three sets of case studies to support this model of generally constrained judicial efficacy. Part 1 focuses on the US Supreme Court’s efforts to end racial segregation in BROWN v. BOARD OF EDUCATION (1954 and 1955) and subsequent cases. Part 2 examines the effects of ROE v. WADE (1973) and other decisions by the Supreme Court involving “women’s rights.” Part 3 is on Supreme Court cases involving the environment, reapportionment, and criminal law, with issues of criminal process receiving the most attention.
Treating BROWN and ROE as paradigmatic, Rosenberg denies that the Court in these cases (or those examined in Part 3) effectively brought about significant social reform. In the case of BROWN, he develops arguments that there was little progress toward desegregation in the South until the President and Congress became involved, especially through passage of the Civil Rights Act of 1964. Instead of having substantial positive direct or indirect effects, he argues that the Court’s rulings mainly set back the cause of racial integration. While Rosenberg finds greater compliance with ROE, he suggests that this ruling similarly did more to harm than advance “women’s rights,” and he gives more credit to extra-judicial developments, including “the tide of history,” for the progress made in this area as well.
Rosenberg offers a bold conclusion: “US courts can almost never be effective producers of significant social reform. At best, they can second the social reform acts of the other branches of government” (p.338/422 (1st/2nd ed.)). At worst, courts serve as “fly paper” for social reformers who succumb to the “lure of litigation” (p.341/427). Court rulings divert scarce resources away from more productive uses while providing only an “illusion of change” (p.341/427).
These conclusions, not surprisingly, have provoked strong reactions. While some have denied that THE HOLLOW HOPE’s main thesis is particularly novel, most reviewers have given Rosenberg credit for offering in this book an original model of judicial efficacy and for developing an impressive empirical account in support of that model. Similarly, many who have not fully embraced Rosenberg’s conclusions in this book have nevertheless appropriately credited THE HOLLOW HOPE for promoting greater understanding of the constraints on judicial powers and the conditions of judicial efficacy. I join others in commending Rosenberg in these ways – and especially for directing attention toward the significance of constitutional and legal developments outside courts, not only through judicial rulings and their direct and indirect effects.
Before turning to Rosenberg’s new analysis in the second edition, I provide here an overview of three overlapping branches of scholarly criticism of the [*1047] first edition. Stated differently, I identify three sets of issues on which reviewers have offered competing or alternative perspectives from Rosenberg’s. This overview may help to set the stage for analysis of the significance of the additions – both in relation to the first edition’s arguments and in relation to scholarly responses to them.
First, a number of scholars have challenged Rosenberg’s conclusions in THE HOLLOW HOPE while largely accepting his analytic theory and methods. Relying on some of the same sources along with independent evidence of the direct and/or indirect effects of BROWN, ROE, and other cases, individuals have argued that the first edition of THE HOLLOW HOPE understated the significance of judicial opinions involving desegregation, abortion, other “women’s rights,” rights of criminal defendants, and other matters. Among those offering empirical claims explicitly or implicitly in competition with Rosenberg’s have been Neal Devins (1992), Malcolm M. Feeley (1992), Michael W. McCann (1992), Bradley C. Canon (1998), and Roy B. Flemming, John Bohte, and B. Dan Wood (1998).
Second have been arguments that THE HOLLOW HOPE relies on an overly narrow, distorted, or otherwise inappropriate model of causation. Rosenberg generally treats the Court as a unilateral actor/agent whose influence is measured primarily by changes in the behavior of other political actors. According to David A. Schultz and Stephen E. Gottlieb (1998), “Rosenberg’s model fundamentally misstates the Court’s role in social change. It obscures how the Court exerts power and how it makes policy” (p.179). In place of Rosenberg’s “nomological model,” Schultz and Gottlieb offer a model of necessary, or “but for,” causality (pp.179, 182-84). They and others – including Devins (1992) and Susan E. Lawrence (1992) – have also suggested that judicial influence is not primarily independent from, but largely linked to, that of other institutions. McCann (1996) has similarly opposed Rosenberg’s “instrumental, linear, and unidirectional” model of causation (p.459).
Third, scholars have opposed Rosenberg’s standards of significance. Feeley (1992), for example, has emphasized that Rosenberg’s criterion of national political change is more stringent than that required by the Supreme Court opinions at issue. Feeley has noted that BROWN, for example, required only the end of de jure racial segregation, not all forms of segregation (Rosenberg’s benchmark). Kevin J. McMahon and Michael Paris (1998) and Robert Van Dyk (1998) appear similarly to have relied on standards of significance more modest than Rosenberg’s. Offering a different perspective, McCann (1992; 1996; 1998) has emphasized ways that court decisions play constitutive roles – which he regards as quite significant even though they are largely invisible to Rosenberg’s model. More specifically, McCann has directed attention to ways that a variety of political actors, acting through multiple governmental institutions and independently of them, have constructed legal norms from the bottom up, not only by complying (from the top down) with court decisions. [*1048]
Rosenberg has responded to a number of these criticisms in forums other than the second edition of THE HOLLOW HOPE. The most extensive and instructive responses are his 1992 reply to Feeley (1992) and McCann’s (1992) early reviews, his 1998 comments on the chapters in Schultz’s (1998) edited collection, and his 2008 electronically published response to critics (accompanying publication of the second edition of THE HOLLOW HOPE). These responses are helpful to the extent that they clarify and refine Rosenberg’s positions, offer additional analysis in their support, and identify areas of overlap and complementarity among the positions of Rosenberg and his critics, while also shedding further light on remaining differences. These responses are less helpful to the extent that they dismiss much of the criticism of the first edition as primarily ideological in nature.
It is beyond the scope of this review to comment more fully on Rosenberg’s responses in such forums to his prior critics. The main reason is that these responses are not included in the second edition of THE HOLLOW HOPE. One may regard this omission as regrettable to the extent that the book may have been strengthened by the inclusion of a more sustained response to critics than is contained in the new two-page epilogue. On the other hand, serious readers may readily access the electronic essay currently at the University of Chicago’s web site (assuming it remains available and unchanged), as with Rosenberg’s 1992 journal article and his 1998 book chapter. Perhaps the issues of accessibility and durability will similarly prove not to be problematic for broader readerships, including classroom use.
The second edition does offer a sustained response to one set of critics: those who have argued that the results of the litigation strategy for rights of same-sex marriage disprove or otherwise challenge Rosenberg’s arguments in the first edition of THE HOLLOW HOPE. I turn now to Rosenberg’s handling of that issue in the second edition’s new Part 4.
Rosenberg concedes that there are important differences between the new case study and those in the first edition. Thus far, litigation involving claims of the right to same-sex marriage have been primarily at the state rather then federal level. In addition, the relevant state court decisions have hinged mainly on issues of state constitutional and statutory law, not interpretation and enforcement of US constitutional guarantees.
Even so, Rosenberg claims that the litigation campaign for rights of same-sex marriage has as its aim achieving significant social reform, as defined earlier in the book. He characterizes gays as “a small minority in the United States that have suffered from, and continue to suffer from, discrimination” (pp.339-40). Litigation for same-sex marriage “is an attempt to broaden and equalize the right to marriage that is enjoyed by heterosexual adults” (p.340). Also, significantly, he emphasizes that the campaign “is an attempt to use the courts to produce change with nation-wide impact” (p.340). All three elements – a litigation campaign (1) by members of a political minority (2) seeking to vindicate “liberal” rights (3) on a national scale – are necessary to satisfy his conception of “significant social reform” (pp.xii, 4). [*1049]
Chapter 12 traces the “direct effects” of the litigation campaign for same-sex marriage through the 2004 elections. This chapter focuses in particular on the impact of three leading cases: BAEHR v. LEWIN (1993) (Hawaii), BAKER v. VERMONT (1999), and GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH (2003) (Massachusetts). Rosenberg claims that each ruling produced “positive” effects: the passage of a “reciprocal beneficiaries” law in Hawaii, the legalization of civil unions in Vermont, and the recognition of same-sex marriages in Massachusetts. He also claims that these victories were not complete: gay individuals still did not have the right to marry in Hawaii or Vermont, and the US government recognized neither the Vermont-style civil unions nor the same-sex marriages performed within Massachusetts. Nor were other states obliged to recognize such civil unions or marriages. Thus gay persons remained, nationally, “second-class citizens.” Same-sex couples “are denied over one thousand, one hundred federal rights that accompany marriage” (p.352).
Chapter 13 attempts to account for the “indirect effects” of this litigation campaign – including its effects on political mobilization both in favor of same-sex marriage and opposed to it, media coverage, and public opinion. According to Rosenberg, there has been an increase in mobilization supporting same-sex marriage that may be attributed in part to litigation. At the same time, there has been even more effective counter-mobilization by the opponents of same-sex marriage. He emphasizes that between 1990 and 2004, 42 bills to support same-sex marriage were introduced into state legislatures, while there were 394 aimed at proscribing it in some manner (p.363). Similarly, by 2004 more than a third of the states had banned same-sex marriage by constitutional amendment; and Congress in 1996 passed the “Defense of Marriage Act” (pp.364-65). Rosenberg concludes: “As a result of litigation, same-sex marriage proponents face legislative and constitutional obstacles on both the state and federal level that did not exist before they turned to litigation” (p.368). While acknowledging that some may regard the combined results as “two steps forward, one step back,” from the perspective of the litigants seeking marriage equality, according to Rosenberg, the results may be summarized more accurately as “one step forward, two steps back” (p.368). Similarly, Rosenberg argues that the GOODRIDGE decision in 2003 sparked a backlash in the 2004 elections which contributed to George Bush’s election as president: “The evidence suggests that if the GOODRIDGE case had not been brought, or had come out another way, John Kerry might well have carried Ohio and thus won the 2004 election” (p.382). Nor, in Rosenberg’s view, did litigation positively impact media coverage, which he concludes was “largely driven by opposition to same-sex marriage, not litigation in support of it” (p.393). Finally, he claims that litigation to win the right to same-sex marriage has not substantially increased public support for this right. To the extent that public opinion has become more supportive of rights of gay men and lesbians, he attributes that development to broader cultural changes rather than litigation.
Rosenberg’s overall conclusion: “[L]itigation as a means of obtaining the right to same-sex marriage has not [*1050] succeeded” (p.415). Those advocating this right, in his view, turned to the courts too soon (before they had widespread popular support) and asked for too much (same-sex marriage rather than civil unions). The more general take-away point, according to Rosenberg, is that “those who rely on the courts absent significant public and political support will fail to achieve meaningful social change, and may set their cause back” (p.419).
The tone of these new chapters is similar to that of the earlier ones. Rosenberg adheres to his primary thesis and marshals the evidence effectively. He appears not to have retreated from any of the first edition’s basic aims, methodological strategies, or conclusions. Instead of qualifying his earlier positions, the new chapters seek to reinforce and extend them.
One of the distinctive strengths of this analysis is also one of its most peculiar features: Rosenberg’s reliance on nationalistic standards as the primary measure of the significance and success or failure of a litigation strategy that most immediately has sought state-level recognition of rights of same-sex marriage. To be sure, there are good reasons to investigate the direct and indirect effects, at the national (including cross-state) level, of this effort to achieve reform through litigation in state courts. Rosenberg’s analysis of these effects has, moreover, been highly instructive.
At the same time, it seems appropriate to regard as equally significant the state-level successes and failures of this strategy. Counting only GOODRIDGE, for example, it makes sense to regard this outcome as a significant victory (from the perspective of advocates of rights of same-sex marriage) even if it has not been accompanied within a relatively short time horizon by net gains within a majority of the states or at the national level. The same would hold true if or when similar judicial victories were obtained, one at a time, in other states.
On this issue, Rosenberg claims to adopt the perspective of litigants and litigators. But surely not all of those advocating rights of same-sex marriage (or those familiar with their motivations) have adopted Rosenberg’s nationalistic criteria of significance or his dichotomous perspective toward success or failure. It is telling that Daniel R. Pinello, an author and activist cited repeatedly by Rosenberg in the second edition of his book (p.347 n.11; p.359 nn.2, 3 & 4; p.362 n.8), explicitly countered the idea that “courts are hollow hopes for significant social reform” (Pinello 2006, p.193). Pinello has described himself in his book, AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE (2006), as an activist for gay and lesbian rights as well as a political science scholar. Wearing both hats, he acknowledged Rosenberg’s arguments in the first edition of THE HOLLOW HOPE. Pinello also offered qualified support for Rosenberg’s primary thesis by taking a position that the litigation strategy for same-sex marriage resulted only in “disaster” before 2003 (p.33). But Pinello argued, contra Rosenberg, that the Massachusetts court’s decision in GOODRIDGE “brought about enormous social change” across at least three dimensions. First, “an estimated 6,000 or more lesbian and gay couples married [*1051] in Massachusetts in the first year” following the decision (p.192). Second, GOODRIDGE “had a profound inspirational effect for the marriage movement” (p.192). Third, the decision “opened a floodgate of heightened expectations” (p.193). Pinello was certainly aware of the backlash this decision and others had provoked; and he was under no misconception that it guaranteed same-sex couples rights of marriage at the federal level. Even so, he treated GOODRIDGE as a significant victory, relying on standards of success and significance closer to McCann’s (which he cited on p.31) than Rosenberg’s (cited on pp.30-31 & 33; countered on p.193).
Another author cited by Rosenberg (p.426, n.6) offers a perspective that competes in a similar way with his analysis. Michael J. Klarman has observed that “the most significant short-term consequence of GOODRIDGE, as with BROWN, may have been the political backlash that it inspired” (Klarman 2005, p.482). But Klarman takes a longer view of both cases. He maintains that the backlash against BROWN led to a “counterbacklash” that precipitated, in turn, federal responses including passage of the Civil Right Act of 1964. Klarman notes that there has not been a similar counterbacklash against state and national laws and constitutional provisions directed against same-sex marriages. Thus the current situation may seem bleak for gays and lesbians: “Marriage rights will now be harder to secure for gays and lesbians because state legislatures cannot provide them, and state courts cannot interpret state constitutions to protect them” (p.466). Even so, Klarman has not concluded that the cause of same-sex marriage has suffered a complete or final loss. For one thing, cases like GOODRIDGE “have dramatically raised the salience of gay-rights issues” (p.474). He has predicted, moreover, that “one day in the not-too-distant future a substantial majority of Americans will support same-sex marriage” (p.484).
Rosenberg does not explicitly engage Klarman’s handling of this issue. But he does take up the issue of whether the litigation campaign for rights of same-sex marriage has increased public support for legalizing such marriages. He concludes that the litigation campaign has not had a substantial effect in that direction, even while public support for civil unions has increased significantly over the past two decades or so. Rosenberg also suggests that the latter trend has been more a function of developments outside the courts than of court decisions. He may be correct.
But Klarman, Pinello, and many others have apparently had good reasons for emphasizing ways that court decisions affirming rights of same-sex marriage have both found support from, and reinforced, the positions on same-sex marriage held by key public constituencies. It remains an open question how these influences will play themselves out in specific contexts, or whether (or how or when) they will ultimately prevail at the macro level of primary concern to Rosenberg. In any event, at both the micro and macro levels (and in between), it will be no simple matter attempting to isolate judicial impact from other effects on the course of public opinion, especially from relatively long-term perspectives. Such efforts will be further complicated by the [*1052] complexities of relationships among courts and other governmental and non- governmental institutions – at the national, state, and local levels. By extension, the influence of these institutions may have been (and may continue to be) overlapping, combined, and interdependent rather than separate and independent.
Adding further complexity, the political terrain involving rights of same-sex marriage (and related issues) has shifted since the publication of the second edition of THE HOLLOW HOPE; and this terrain will doubtless continue to change in important ways in the days, months, and years to come. It is noteworthy in this connection that the major developments involving rights of same-sex marriage, since the book’s publication, have thus far largely been extensions of the pre-publication patterns that the new chapters document. In May and October of 2008, the highest courts in California (IN RE MARRIAGE CASES) and Connecticut (KERRIGAN), respectively, held that same-sex couples had the right to marry in those two states. The California court’s decision went into effect on June 16; Connecticut’s, on October 28. But the former was overturned by a ballot initiative, Proposition 8, on November 4, 2008 (after approximately 18,000 same-sex marriages were performed in that state); while a proposal to require a constitutional convention in Connecticut failed on that date. Ballot initiatives to deny rights of same-sex marriage were also approved on November 4, 2008, in Arizona and Florida; and the voters in Arkansas approved a measure banning unmarried couples from serving as adoptive or foster parents. There will doubtless be further controversies, including court cases, in these and other states. Most immediately, a number of lawsuits have been filed in California challenging the validity of Proposition 8.
The recent results of the ballot initiatives in Arizona, Florida, Arkansas, and especially California reinforce Rosenberg’s argument that litigation strategies for rights of same-sex marriage have led to significant set-backs. His theory also provides some tools to explain why litigation strategies (along with other factors) appear to have produced relatively full and lasting successes in some states but not others. Full accounts of the paths of legal and constitutional development within particular states and within the nation more generally may benefit from Rosenberg’s analysis, even if such accounts may be further enriched by supplemental perspectives as well.
REFERENCES:
Canon, Bradley C. 1998. “The Supreme Court and Policy Reform: The Hollow Hope Revisited.” In David A. Shultz (ed). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang, 215-249.
Devins, Neal. 1992. “Judicial Matters.” Review of THE HOLLOW HOPE (1st ed.), by Gerald Rosenberg. 80 CALIFORNIA LAW REVIEW 1027-69
Feeley, Malcolm M. 1992. “Hollow Hopes, Flypaper, and Metaphors.” Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 745-60. [*1053]
Flemming, Roy B., John Bohte, and B. Dan Wood. 1998. “One Voice Among Many: The Supreme Court’s Influence On Attentiveness to Issues in the United States, 1947-1992.” In David A. Shultz (ed.), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 21-61.
Klarman, Michael J. 2005. “BROWN and LAWRENCE (and GOODRIDGE).” 104 MICHIGAN LAW REVIEW 431-89.
Lawrence, Susan E. 1992. Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. 86 AMERICAN POLITICAL SCIENCE REVIEW 812-13.
McCann, Michael W. 1992. “Reform Litigation on Trial.” Review of THE HOLLOW HOPE (1st ed.), by Gerald N. Rosenberg. In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 715-43.
McCann, Michael W. 1996. “Causal versus Constitutive Explanations (or, On the Difficulty of Being so Positive . . .).” 21 LAW & SOCIAL INQUIRY 457-82.
McCann, Michael W. 1998. “Law and Political Struggles for Social Change: Puzzles, Paradoxes, and Promises in Future Research.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 319-49.
McMahon, Kevin J. and Michael Paris. 1998. “The Politics of Rights Revisited: Rosenberg, McCann, and the New Institutionalism.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 63-134.
Pinello, Daniel R. 2006. AMERICA’S STRUGGLE FOR SAME-SEX MARRIAGE. Cambridge: Cambridge University Press.
Rosenberg, Gerald N. 1992. “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann.” In “Symposium: The Supreme Court and Social Change.” 17 LAW & SOCIAL INQUIRY 761-78.
Rosenberg, Gerald N. 1998. “Knowledge and Desire: Thinking About Courts and Social Change.” In David A. Shultz (ed.). LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 251-91.
Rosenberg, Gerald N. 2008. “Ideological Preferences and Hollow Hopes: Responding to Criticism.” http://www.press.uchicago.edu/books/rosenberg/. Last visited 14 October 2008.
Schultz, David A. (ed). 1998. LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. [*1054]
Schultz, David A., and Stephen E. Gottlieb. 1998. “Legal Functionalism and Social Change: A Reassessment of Rosenberg’s THE HOLLOW HOPE.” In David A. Shultz (ed), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 169-213.
Van Dyk, Robert. 1998. “The Pro-Choice Legal Mobilization and Decline of Clinic Blockades.” In David A. Shultz (ed), LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang. 135-167.
CASE REFERENCES:
BAEHR v. LEWIN , 74 Haw. 530, 852 P.2d 44, clarified 74 Haw. 645, 852 P2d 74 (Haw. 1993).
BAKER v. VERMONT, 744 A.2d 864 (Vt. 1999).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1955).
GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, 440 Mass. 309; 798 N.E.2d 941 (Mass. 2003).
IN RE MARRIAGE CASES, 183 P.3d 384 (CA, 2008).
KERRIGAN, ET AL. v. COMMISSIONER OF PUBLIC HEALTH, SC 17716 (CT SCt, 2008)
ROE v. WADE, 410 U.S. 113 (1973).
© Copyright 2008 by the author, Wayne D. Moore.
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