Gerald N. Rosenberg, an assistant professor of political science and an instructor in law at the University of Chicago, has some simple advice for activists who think a United States Supreme Court ruling is an end-all: not only are you wrong, but your money is better spent out of court than in court. In The Hollow Hope, Rosenberg takes to task the civil and women’s rights movements for making the Supreme Court the battleground for social change. Looking at Brown v. Board of Education and Roe v. Wade, the most celebrated legal cases of these respective movements, Rosenberg finds that neither case provided for the substantial type of social reform activists currently credit them with producing.
Indeed, Rosenberg disagrees from the outset with the long-held litigious strategy of many in the civil rights movement, in which Brown is spoken of with awe and reverence. Rosenberg’s research reveals that the Brown ruling was hardly “the most important political, social, and legal event in America’s twentieth century history” or the “paradigmatic event” civil rights lawyers claim. Instead, he finds the Supreme Court to have been impatient but unable to implement Brown until the Civil Rights Act of 1964—a full decade later—owing to a lack of supportive political and public opinion.
The numbers Rosenberg presents are convincing and bear out his contention that congressional legislation, presidential resolve, and evolving public opinion did more for blacks in Southern public schools than did the Brown ruling. For example, in 1959-60, five years after Brown overturned Plessy v. Furguson‘s separate-but-equal ruling, only .16 percent of black children in the South were attending elementary and secondary schools with white children. By comparison, five years after the Civil Rights Act in 1969, 32 percent of black children in the South had been integrated into the region’s public schools. “The statistics from the Southern states are truly amazing. For ten years, 1954-64, virtually nothing happened,” says Rosenberg. “Despite the unanimity and the forcefulness of the Brown opinion, the Supreme Court’s reiteration of its position and its steadfast refusal to yield, its decree was flagrantly disobeyed. . . . As Judge Wisdom put it, writing in the Jefferson County case, ‘the courts acting alone have failed.'”
Congress, the executive branch, and the federal agencies, following the passage of the Civil Rights Act of 1964, Rosenberg argues, were the real catalysts for desegregation reform in the South. He reminds the reader of the power of the federal purse: “When the federal government made money available to local school districts that desegregated, it loosed a powerful and attractive force on segregated schools. This was particularly true in the South because that region spent less on schools, as measured by the percentage of total personal income, than any region in the country.” Federal funds definitely seemed to have spurred social change. Mississippi, for example, in 1963-65 received only $13 million in federal funds for its state school system and had only .02 percent of black children in school with white children. By 1971, 91.5 percent of Mississippi’s black children attended integrated public schools, which were drawing $99.4 million in federal funds.
Rosenberg also credits leadership at the executive level for having contributed to the desegregation movement by creating a “political climate” in which Brown could be enforced. It is hard to argue against this point, considering the evolution from the Eisenhower administration’s cautious approach toward civil rights to the Johnson administration’s enforcement of the Voting Rights Act of 1965. Far more important than presidential fiat, however, is the fact that American society as a whole was becoming less tolerant of segregation and more sympathetic toward the civil rights movement as events and the people who launched them—the Montgomery Bus Boycott, the Little Rock crisis, the Freedom Riders, the murders of Medgar Evers and three other civil rights workers near Philadelphia, Mississippi, and the Birmingham Demonstrations—were brought to the attention of the public through the mass media. “While it must be the case that Court action influenced some people,” writes Rosenberg, “I have found no evidence that this influence was widespread or of much importance to the battle for civil rights. The evidence suggests that Brown‘s major positive impact was limited to reinforcing the belief in a legal strategy for change of those already committed to it.”
Likewise, he says, for Roe v. Wade: “Relying on the civil rights movement as an example of a successful use of courts to produce significant social reform, and assuming ‘congruence between civil rights and women’s rights, groups were formed to litigate women’s rights issues. Money, time, and talent were poured into the litigation strategy. What were the results?” Not much. Abortion was already a socially—but not legally—acceptable procedure by the time of Roe in 1973. According to Rosenberg’s numbers, the rate of increase of abortions from 1970 to 1973 is not markedly different from that between 1973 and 1980. What is more, the real revolution with regard to abortion rights came prior to Roe—the highwater mark of the women’s movement—and occurred within the state courts, the forums today’s abortion rights activists despise and dread. Before Roe, the federal government treated the question of abortion with “benign neglect,” as a matter for the states— many of which Rosenberg describes as having been extremely receptive to abortion rights—to decide. “In 1967, there was an outbreak of legislative activity to liberalize abortion law. Reform bills were introduced in 28 states, including California, Colorado, Delaware, Florida, Georgia, Maryland, Oklahoma, New Jersey, New York, North Carolina, and Pennsylvania.” By the early 1970’s benign neglect was firmly entrenched: “Despite his personal anti-abortion beliefs. President Nixon did not take active steps to limit abortion. While his opponent in the 1972 presidential election. Senator George McGovern, was dubbed by some Republicans the ‘triple A’ candidate (Abortion, Acid, Amnesty), where it mattered the Nixon administration was silent.”
After celebrating their victory in Roe, women’s and abortion rights activists failed to protect their flanks in Congress, where anti-abortion legislation was starting to breed. They also lost sight of their goals at the community-level, where the pro-life movement was in its fetal stage. Now these activists, still determined to defend Roe at all costs, find themselves Johnny-come-latelies to street-level politics practiced on the doorsteps of abortion clinics in Wichita and Buffalo.
Admirers of Brown and advocates of Roe have, in Rosenberg’s opinion, simply overestimated the effectual importance of these two decisions by the Supreme Court. Brown was not implemented until there was an almost nationwide improvement in race relations, while today the backers of Roe v. Wade find themselves overextended, fighting for Roe not only in the Supreme Court but in all 50 states, locality by locality. Rosenberg concludes that activists’ money, time, and talent would be better spent attempting to mold public rather than judicial opinion if sustained social reform is their goal. “Social reformers, with limited resources, forgo other options when they elect to litigate. Those options are mainly political and involve mobilizing citizens to participate more effectively. . . . [W]hile such exercises [as Brown and Roe] may make for fine reading constitutional-law textbooks, they seldom bring reform any closer.” Obviously, this is a lesson that hasn’t been lost on Operation Rescue.
[The Hollow Hope: Can Courts Bring About Social Change?, by Gerald N. Rosenberg (Chicago: The University of Chicago Press) 424 pp., $29.95]