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Hollow Hopes, Flypaper, and Metaphors

Published online by Cambridge University Press:  27 December 2018

Malcolm M. Feeley
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Type
Review Section Symposium
Information
Law & Social Inquiry , Volume 17 , Issue 4 , Fall 1992 , pp. 745 - 760
Copyright
Copyright © American Bar Foundation, 1992 

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References

1 Horowitz, Donald L., The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977); Joel Handler, Social Movements and the Legal System (New York: Academic Press, 1978); and Stuart Scheingold, The Politics of Rights (New Haven, Conn.: Yale University Press, 1974).Google Scholar

2 In “Reform Litigation on Trial,” in this symposium, Michael McCann describes and discusses these two models at some length, so 1 shall not repeat that description here.Google Scholar

3 In his preface Rosenberg gives a brief autobiography. He notes that as a youngster growing up in a liberal New York City family, he had great respect and expectations for the federal courts, and only sometime later came to question their efficacy.Google Scholar

4 Brown v. Board of Education, 347 U.S. 483 (1954); Roe v. Wade, 410 US. 113(1973); Mapp v. Ohio, 367 US. 643 (1961); Miranda v. Arizona, 377 U.S. 201 (1966); Bakerv. Carr, 369 US. 186 (1962).Google Scholar

5 This is not quite right. His two central concerns—civil rights of African Americans and abortion/women's rights—are expansive treatments. His third catch-all section on environment, reapportionment, and criminal law is skimpy and not always carefully considered.Google Scholar

6 For instance, in measuring the before/after impact of Roe v. Wade, he relies on nationwide estimates on numbers of abortions. Almost everyone who has reflected on the impact of Roe acknowledges that it is likely to have had differential impacts in different states, depending on local cultures and the expansiveness of abortion laws prior to Roe. Nationwide figures are likely to obscure variable impact within states.Google Scholar

7 Indeed, proponents of restraint at times appear to attribute even greater power to the federal courts than do those who embrace judicial activism. From Holmes to Frankfurter to Bickel to Bork, opponents of judicial activism have attributed enormous influence—or potential influence—to the Court. Their opposition to activism has been based not on the fact that the courts are not powerful but on the fact that the principles of democracy dictate deference to the other branches.Google Scholar

8 One might add to this list of concerns critical legal studies scholars who have made the “indeterminacy of the law” the centerpiece in their analysis of law.Google Scholar

9 Rosenberg's book purports to be about courts and social policy, but in fact is almost entirely about one court, the United States Supreme Court. For this reason, through out this essay the court I refer to is almost always the U.S. Supreme Court.Google Scholar

10 He also treats from time to time another group who believe that court rulings have had significant social effects but deplore them. For instance, in Courts and Social Policy (cited in note I), Horowitz argues that the courts have enormous impact on public policy but almost always in a destructive way. He argues that they have undermined the quality of teaching in public schools, the efficacy of rehabilitation for juveniles, the efficacy of criminal procedure, and the like. In short, his thesis is that when the courts attempt to make social policy, they make messes. But they do make something! In contrast, Rosenberg argues that the courts do not have any kind of effect.Google Scholar

11 See, e.g., Dahl, Robert, “Decision-making in a Democracy: The Supreme Court as a National Policy Maker,” 6 J. Pub. L 279 (1957); Scheingold, The Politics of Rights (cited in note 1); David Adamany, “JAW and Society: Legitimacy, Realigning Elections, and the Supreme Court,” 1973 Wis. L. Rev. 791; and Jonathan Casper, “The Supreme Court and National Policy Making,” 70 Am. Pol. Sci. Rev. 50 (1976).Google Scholar

12 Ithaca, N.Y.: Cornell University Press, 1986.Google Scholar

13 The entire structure of Rosenberg's book owes much more to Scheingold's book than Rosenberg probably realizes.Google Scholar

14 Griggs v. Duke Power Co., 401 U.S. 424 (1971), invalidated an employer's use of educational criteria and general intelligence tests as conditions of employment and advancement when neither standard was shown to be significantly related to successful job performance; both requirements operated to disqualify blacks at a significantly higher rate than whites; and the jobs in question had traditionally been held by whites as part of a long-standing practice of discrimination against blacks. In deciding this case, the Court emphasized that it was basing its decision on the Civil Rights Act of 1964 and that it was invalidating the use of these tests in a company that had a history of racial discrimination. Thus, even here, in one of the Court's high watermarks for the “effects” test (as opposed to the more conservative “intent” test), the Court stressed the pattern of discrimination in the company involved in the suit (as opposed to the general social goal of an integrated workforce) and that it was deciding the case under statutory, not constitutional, principles. In short, the Court may have been “constrained” by other more powerful political branches, but the constraint appears to be self-imposed. Here, too, the Court's “reach” is far more modest than that implied by Rosenberg, and the gap between its reach and actual grasp is far less than he implies. It was not simply slapped down by more powerful political forces; it simply did not try to do too much.Google Scholar

15 Brown v. Board of Education, 347 U.S. 483; Green v. County School Board of New Kent County, 391 U.S. 430 (1968); Swann v. Charlotte-Mecklenburg School District,402 U.S. 1 (1971). In Gem, the Court reiterated that Brown's purpose was to eliminate the vestiges of “state-imposed segregation”; (my emphasis) and thus struck down a seemingly neutral “freedom-of choice” plan because it perpetuated the official segregation policy that had preceded it. In Swann, the Court affirmed a district court's powers to act decisively to fashion plans to desegregate schools in the face of continued school board resistance. But in doing so, it emphasized that these actions were “remedial,” that they were efforts to eliminate all vestiges of state-imposed segregation in order to convert officially desegregated dual school systems into unitary systems. Here, too, the Court stressed its power to eliminate the vestiges of state-sanctioned, official discrimination rather than any affirmative vision of an integrated society.Google Scholar

16 Admittedly the declaration of the death of apartheid was in itself bold and dramatic. In one fell swoop, nine old men made a decision that had the potential for significantly affecting the lives of many millions of people—most of whom were concentrated in a region of the country whose citizens still within the memory of some had initiated a bitter civil war over related matters. And admittedly at some point vigorous efforts to desegregate(i.e. end apartheid) meld into efforts to integrate. Loving v. Virginia, 388 U.S. 1 (1967).Google Scholar

17 Had this been the Court's intention, one would have expected it to have been more aggressive in expanding right to counsel to suspects at the earliest stages in the criminal process or developed something like a “duty” of silence until consultation with a lawyer. Although some police departments experimented with placing lawyers in the station houses, the Court never encouraged this and certainly did not mandate it.Google Scholar

18 This was one of Tocqueville's striking observations in Democracy in America (Garden City, N.Y.: Doubleday/Anchor, 1969). The expansion of the power and prestige of lawyers since its publication in 1836 only underscores his argument.Google Scholar

19 Brigham, John, The Cult of the Court (Philadelphia: Temple University Press, 1987).Google Scholar

20 See, e.g., Bumiller, Kristen, The Civil Righ Society (Baltimore: Johns Hopkins University Press, 1990); Richard Abel, “Why Does the ABA Promulgate Ethical Rules?” 59 Tex. L. Rev. 639 (1981).Google Scholar