The Hollow Hope

Can Courts Bring About Social Change? Second Edition

Gerald N. Rosenberg

• Publisher: University of Chicago Press
• Year: 2008
• ISBN:
  9780226726687
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In follow-up studies, dozens of reviews, and even a book of essays evaluating his conclusions, Gerald Rosenberg's critics—not to mention his supporters—have spent nearly two decades debating the arguments he first put forward in The Hollow Hope. With this substantially expanded second edition of his landmark work, Rosenberg himself steps back into the fray, responding to criticism and adding chapters on the same-sex marriage battle that ask anew whether courts can spur political and social reform.
Finding that the answer is still a resounding no, Rosenberg reaffirms his powerful contention that it's nearly impossible to generate significant reforms through litigation. The reason? American courts are ineffective and relatively weak—far from the uniquely powerful sources for change they're often portrayed as.Rosenberg supports this claim by documenting the direct and secondary effects of key court decisions—particularly Brown v. Board of Education and Roe v. Wade. He reveals, for example, that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation, while pro-choice activists invested too much in Roe at the expense of political mobilization. Further illuminating these cases, as well as the ongoing fight for same-sex marriage rights, Rosenberg also marshals impressive evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile.
Directly addressing its critics in a new conclusion, The Hollow Hope, Second Edition promises to reignite for a new generation the national debate it sparked seventeen years ago.

PART 1

Civil Rights

Introduction

“. . . in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” (Brown v. Board of Education 1954, 495)

With these words Chief Justice Earl Warren, speaking for a unanimous Supreme Court, sounded the death knell for legal segregation of the public schools in the United States. Brown overturned nearly sixty years of Court-sanctioned segregation, effectively reversing the infamous separate-but-equal doctrine (Plessy v. Ferguson 1896). In holding that state-enforced segregation on the basis of color deprives individuals of the equal protection of the laws guaranteed by the Fourteenth Amendment, the Supreme Court “quite simply, buried Jim Crow” (Aleinikoff 1982, 923). Brown was followed by decisions banning racial segregation in public parks and recreation facilities, in intrastate and interstate commerce, in courtrooms, and in facilities in public buildings.¹ Thus, Brown is invariably seen as “a revolutionary statement of race relations law” (Carter 1968, 237) through which the Supreme Court “blazed the trail” of civil rights (Spicer 1964, 176). Being “nothing short of a reconsecration of American ideals” (Kluger 1976, 710), Brown “profoundly affected national thinking and has served as the principal ideological engine” of the civil rights movement (Greenberg 1968, 1522). For five decades, Brown has been the “symbol” of the courts’ ability to produce significant social reform (Neier 1982, 57), the “principal inspiration to others who seek change through litigation” (Greenberg 1974, 331). As Wilkinson puts it, “Brown may be the most important political, social, and legal event in America’s twentieth-century history” (Wilkinson 1979, 6). It has served, Robert Cover tells us, as a “paradigmatic event” (Cover 1982, 1316).

It is hard to avoid being caught up in the rhetoric of the Court’s words and the praise it evoked. History, too, seems to bear this out. For ten years after Brown Congress and the executive branch did little to promote civil rights. The Court spoke alone. Yet words are not action. Although the conventional wisdom, as cited above, and shared by proponents of the Dynamic Court view, is that the federal courts, through Brown and its progeny, played a crucial role in producing both changes in civil rights and an active civil rights movement, truth is not thereby assured. With Brown as a paradigm for the Dynamic Court view, it is important to examine Brown’s effects.

To do so, I will focus on the consequences of court action in the battle for civil rights. Proponents of the Dynamic Court view assert that, starting with Brown and continuing through the desegregation decisions, the courts have been a key institution producing change in civil rights. The Constrained Court view, of course, denies this assertion and calls attention to the broader societal change of which court action is only one small part. In order to test the two views, and the constraints and conditions generated by them, I will concentrate on the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1965 Elementary and Secondary Education Act and attempt to untangle their relative impact as compared to that of the courts. If progress has been made in civil rights,² were Congress and the executive branch helpful backups to the powerful thrust of the courts or were they the key institutions effecting change? Which institution made a difference? Did it vary over issue (school segregation vs. voting rights vs. segregation in transportation vs. segregation in public places)? Or over time? Was the civil rights movement making the best use of scarce resources by relying heavily on a courts-based strategy?

In charting the influence that court decisions might have, I will examine both the judicial and extra-judicial paths. Examining both paths is important, for extra-judicial effects are a key aspect of the Dynamic Court view. With civil rights, for example, it has often been suggested that the federal courts may have served as agenda-setters, as legitimizers of black protest and needlers of white consciences.³ The role of the courts in the civil rights movement may have been to bring to light the existence of discrimination and keep it prominent, changing public opinion about civil rights and forcing action from Congress. That is, without Brown there may never have been a 1964 Civil Rights Act, a 1965 Voting Rights Act, or a 1968 Housing Act.

Chapter 2 summarizes judicial, legislative, and executive action in key areas of civil rights. By bringing together all government action dealing with civil rights, it allows the reader to see the whole picture. The discussion also compares the results of actions of the different branches. Chapter 3 applies the two views and the constraints and conditions to these findings. Chapter 4 examines the Dynamic Court view claim of extra-judicial effects and chapter 5 completes this part by exploring other societal factors that supported civil rights.

2

Bound for Glory? Brown and the Civil Rights Revolution

Education—Elementary and Secondary Schools

Court Action

Brown and its companion case, Bolling v. Sharpe (1954),¹ were the Court’s first modern foray into questions of segregation in the elementary and secondary schools. Brown was actually four consolidated cases coming from the states of Kansas (Brown v. Board of Education of Topeka, Kansas 1951), South Carolina (Briggs v. Elliott 1952), Virginia (Davis v. County School Board of Prince Edward County, Virginia 1952), and Delaware (Gebhardt v. Belton 1952). Its holding, however, was applicable to all public elementary and secondary schools throughout the nation. At the time of the decision (May 17, 1954), seventeen Southern and Border states,² plus the District of Columbia, maintained segregated elementary and secondary schools by law and four states outside the region—Arizona, Kansas, New Mexico, and Wyoming—allowed local segregation. Eleven states had no laws on the subject and sixteen states had laws prohibiting segregation, though not all were enforced. Thus, twenty-seven states either prohibited segregated schools outright or had no laws dealing with the question while twenty-one states either required or allowed segregated schools.

Brown had taken several years to decide. Originally argued in 1952, it was re-argued in 1953, before a Court presided over by a new Chief Justice, Earl Warren. The decision was announced in May of 1954. The time delay between initial argument and final decision was due to the complexity of the issues involved and the desire of the new Chief Justice to reach a unanimous decision (Ulmer 1971).³

The National Association for the Advancement of Colored People (NAACP) was euphoric over the unanimous decision. Thurgood Marshall, the chief litigator for the black plaintiffs, told reporters that the Supreme Court’s interpretation of the law was “very clear.” If the decision were violated anywhere “on one morning” Marshall said, “we’ll have the responsible authorities in court by the next morning, if not the same afternoon.” When asked how long he thought it would take for segregation to be eliminated from public schools, Marshall replied that “it might be ‘up to five years’ for the entire country.” Finally, “he predicted that by the time the 100th anniversary of the Emancipation Proclamation was observed in 1963, segregation in all its forms would have been eliminated from the nation” (“N.A.A.C.P.” 1954, 16).

The decision, however, did not include any announcement as to the appropriate relief for the plaintiffs. This was postponed for reargument due to the “considerable complexity” (Brown 1954, 495) of the matter. Reargument lasted for four days in April 1955, and the parties to the case, including the United States, were joined by the attorneys general of Arkansas, Florida, Maryland, North Carolina, Oklahoma, and Texas, as amici curiae pursuant to the Court’s invitation in Brown (1954, 495–96).

The remedy was announced on May 31, 1955, slightly more than a year after the initial decision and two and one-half years after the initial argument. The Court in Brown II (1955) held that, because local school problems varied, federal courts were in the best position to assure compliance with Brown I, an end to legally enforced public-school segregation. The cases were reversed and remanded to the lower courts⁴ which were ordered to “take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases” (1955, 301). The phrase “with all deliberate speed” was picked up by commentators, lawyers, and judges as the applicable standard. Thus, the end result of the Brown litigation was a unanimous Supreme Court clearly and unequivocally holding that state-enforced segregation of public schools was unconstitutional and ordering that it be ended “with all deliberate speed.”

During the years from 1955 through the passage of the 1964 Civil Rights Act, the Court issued only three full opinions in the area of segregation of elementary and secondary schools. It routinely refused to hear cases or curtly affirmed or reversed lower-court decisions (for a discussion of these cases, see Wasby et al. 1977, 166–73, 192–98). However, in Cooper v. Aaron (1958), the first case after Brown, the Court spoke strongly.

Cooper v. Aaron involved the attempt of Governor Faubus and the Arkansas legislature to block the desegregation of Central High School in Little Rock, Arkansas. The Court convened in a special session for only the fifth time in thirty-eight years to hear the case (Peltason 1971, 187). After reviewing the history of attempts to desegregate the public schools in Little Rock, the Court faced the question of whether violence, or threat of violence, in response to desegregation and resulting in turmoil in the school disruptive of the educational process justified the suspension of desegregation efforts for two and one-half years. In answering in the negative, rejecting the school board’s claim and reversing the federal district court, the Supreme Court held that the “constitutional rights of respondents [black students] are not to be sacrificed or yielded to the violence and disorder” which was occurring (1958, 16). This was, as the opinion stated, “enough to dispose of the case” (1958, 17), but the Court continued for several pages to underline its determination that Brown be followed. It reminded the parties that Article VI of the Constitution makes the Constitution the “supreme law of the land” (1958, 18). Further, the Court unearthed Marbury v. Madison (1803) and Chief Justice Marshall’s words that “[i]t is emphatically the province and duty of the judicial department to say what the law is” (1803, 177, quoted at 1958, 18). The opinion also pointed out that the decision in “Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration.” Not stopping here, the justices stressed that twelve justices had considered and approved the Brown doctrine (the nine who originally agreed to it and the three who had joined the Court since then) (1958, 19). Finally, in an unprecedented move, all nine justices individually signed the opinion. Cooper v. Aaron was a massive and unswerving affirmation that desegregation was the law and must be implemented.

The next full opinion in the elementary and secondary education field came in Goss v. Board of Education of Knoxville (1963). At issue was a desegregation plan that included a provision allowing students to transfer from a school where their race was a minority to one where it predominated. This provision was challenged on the ground that since race was the sole criterion of the plan it would perpetuate rather than alleviate racial segregation, denying plaintiffs the right to attend desegregated schools. The Court agreed, unanimously holding the one-way transfer plan to be violative of the Fourteenth Amendment and contrary to Brown.

The third decision, Griffin v. Prince Edward County was handed down in 1964. The case involved the constitutionality of the closing of Prince Edward County public schools to avoid desegregation and the use of state tuition grants and tax credits to support private segregated education for white children. The Court unanimously⁵ found both acts unconstitutional, being essentially devices to avoid the constitutional mandate of desegregation, and denying plaintiffs the equal protection of the law.

Brown I and II stated the law and stated clearly that steps had to be taken to end state-enforced segregation. Cooper v. Aaron emphatically re-iterated it. And Goss and Griffin unanimously held that patent attempts to avoid desegregation were unconstitutional. The Court had spoken clearly and forcefully.

In the first four years after the passage of the 1964 Civil Rights Act, the Supreme Court remained quiet in the education area. However, the lower federal courts, particularly in the Fourth and Fifth Circuits, became increasingly involved in litigation. In 1965, the Fifth Circuit, in a case from Jackson, Mississippi, upheld desegregation guidelines announced by the U.S. Department of Health, Education, and Welfare (HEW) (to be discussed below). The circuit court “attach[ed] great weight to the standards” established by HEW and warned that it would not allow school districts to avoid HEW requirements by obtaining less stringent desegregation orders from local, and friendly, federal district courts (Singleton v. Jackson Municipal Separate School District 1965, 731). Similarly, in the Jefferson County case, in which a three-judge panel had ordered the defendant school systems to desegregate classrooms, facilities, and staffs by the 1967–68 school year, the Fifth Circuit, quoting Singleton, reaffirmed its support for the guidelines (U.S. v. Jefferson County Board of Education 1966, 847, 848, 851). The court reiterated its concern that the courts not be used to avoid strict HEW standards and stressed that “affirmative action” had to be taken to create a “unitary, nonracial system” (1966, 862, 878).

The Supreme Court re-entered the field in 1968 and issued, for the first time since Brown, a detailed opinion on remedies. Green v. County School Board of New Kent County, Va. (1968), involved a freedom-of-choice plan under which no white child had transferred to the “formerly black school” and only about 15 percent of the black children had transferred to the “formerly white school.” In a unanimous opinion, written by Justice Brennan, the Court threw out the freedom-of-choice plan and suggested that such plans would be unlikely t...