Rosenberg

1
Rosenbergs Methodology

• Topic My aim is to understand to what extent
  courts helped and can help produce liberal
  change. xi
• Research Question Can courts produce
  significant social reform? and carefully
  defines all the terms
• Literature Search There appear to be two
  competing views dynamic court, constrained
  court. He investigates each view carefully and
  concludes that they are mutually exclusive, so
  one of them has to be wrong.

2
Rosenbergs Methodology

• Hypothesis He states a clear hypothesis that is
  capable of being tested with empirical evidence
  and capable of being refuted.
• Hypothesis Testing He examines carefully all
  the evidence relevant to his hypothesis. Note
  this is not the same as providing evidence
  consistent to his hypothesis. The fundamental
  difference between science and propaganda is to
  be found in this distinction.

3
Rosenbergs Hypothesis

• The conditions enabling courts to produce
  significant social reform will seldom be present
  because courts are limited by three separate
  constraints built into the structure of the
  American political system.
• The limited nature of constitutional rights
• The lack of judicial independence
• The judiciary's lack of powers of implementation.

4
Rosenbergs Hypothesis (continued)
However, when certain conditions are met, courts
can be effective producers of significant social
reform. These conditions occur when EACH of the
three constraints are overcome.
5
Constraint I
The limited nature of constitutional
rights This constraint can be overcome if there
is ample legal precedent for change.
6
Constraint II
The lack of judicial independence This
constraint can be overcome if there is support
for change from substantial numbers in Congress
and from the executive.
7
Constraint III

• The judiciary's lack of powers of
  implementation
• This constraint can be overcome if there is
  either support from some citizens, or at least
  low levels of opposition from all citizens, AND,
  at least one of the following four conditions are
  met
• Positive incentives are offered to induce
  compliance.
• Costs are imposed to induce compliance.
• Court decisions allow for market implementation.
• Administrators and officials crucial for
  implementation are willing to act and see court
  orders as a tool for leveraging additional
  resources or for hiding behind.

8
What about Roe v. Wade?
9
Constraint I
The limited nature of constitutional
rights This constraint can be overcome if there
is ample legal precedent for change.
10
Roe v. WadeOvercoming Constraint I

• The Limited Nature of Constitutional Rights
  overcome by well established line of cases on
  marital and procreative privacy--cases already
  used to strike down abortion laws in lower and
  state courts

11
Constraint II
The lack of judicial independence This
constraint can be overcome if there is support
for change from substantial numbers in Congress
and from the executive.
12
Roe v. WadeOvercoming Constraint II

• Lack of Judicial Independence overcome by
  widespread elite support and little popular
  opposition to reform of abortion laws prior to
  Roe.
• After Roe there was significant new opposition
  from elites
• 68 constitutional amendments proposed in Congress
• a variety of anti-abortion riders
• the Hyde Amendment
• states rewrote laws hostile to abortion
• proliferation of right to life groups
• Aggregate public opinion did not shift that much

13
Constraint III

• The judiciary's lack of powers of
  implementation
• This constraint can be overcome if there is
  either support from some citizens, or at least
  low levels of opposition from all citizens, AND,
  at least one of the following four conditions are
  met
• Positive incentives are offered to induce
  compliance.
• Costs are imposed to induce compliance.
• Court decisions allow for market implementation.
• Administrators and officials crucial for
  implementation are willing to act and see court
  orders as a tool for leveraging additional
  resources or for hiding behind.

14
Roe v. Wade Overcoming Constraint III

• Lack of Enforcement Powers overcome by support
  from some citizens AND
• (Condition 2) the accident that the courts
  decisions allowed for market implementation

15
Rosenbergs Conclusion

• Courts can almost never produce significant
  social reform. Problems unsolvable in the
  political context can rarely be solved by the
  courts. Litigation drains energy that could be
  better spent on political efforts.
• Reliance on court substantially weakened
  pro-choice forces. They failed to organize
  politically (we won). They helped to pass the
  Hyde Amendment assuming the court would overturn
  it. Symbolic victories are mistaken for
  substantive ones.