The Not So Hollow Hope

Steven Teles

I read with interest Mark Graber's generally appreciative assessment of Rosenberg's Hollow Hope. As I will note in a moment, on balance I'm less convinced of the book's merits than Mark is, but it is absolutely the case that it must be given its due. No one in the wide sweep of the scholarly community that the book speaks to can ignore it. Rosenberg took Dahl's pretty underdeveloped theory from the 1950s and put substantial meat on its bones. The book made relatively clear, audacious, more or less rebuttable claims. An avalanche of literature came after the book seeking to knock down or the other of its arguments. So simply as an academic phenomenon, it was a success of the first order. Like Posner's Economic Analysis of Law, lots of people devoted time to debunking it, but in debunking it, they were simultaneously recognizing it as an argument that had to be taken seriously. What is more, Rosenberg was clearly responding to a real set of beliefs out there in the world that were overly romantic about what courts (especially the Supreme Court) could achieve by way of producing real-world justice. These beliefs were especially strong in the legal academy—if nothing else, Rosenberg's book was a powerful swipe at law professors, many of whom deserved it.

That said…I think the book is largely, albeit not completely, wrong. There are a number of cases that are simply hard to make sense of in his framework. Feeley and Rubin's important book on the prison cases, Judicial Policymaking and the Modern State, shows that the "constraints" that Rosenberg identified are not nearly as daunting as he suggested. When courts had sufficient will (which was more often than Rosenberg would suggest) they directed legislatures to spend considerable sums of money that they would not have been willing to disburse in the absence of court action. Courts developed impressive institutional capacity to oversee their orders (such as special masters) that overcame much of the supposed intrinsic implementation defects that Rosenberg thought were hard-wired into the kind of institution that courts are. Judges were, in many of these cases, much more politically savvy than Rosenberg thought, outplaying very canny political actors like Texas' head of prisons George Beto.

Or consider the arguments in Shep Melnick's incredibly important Regulation and the Courts and Between the Lines. Melnick is generally skeptical that the actions that courts took were good public policy, but especially in Between the Lines, he has no doubt that they were generally effective in their own terms. In Food Stamps, courts were able to delay legislative action when it was turning against the program, pushing changes off until a more sympathetic presidential administration took office. Court action created a new status quo in the program, which gave supporters of food stamps in Congress a much stronger hand to play. In the case of education for handicapped children, courts helped to frame the issue in terms of rights, a framing that then became dominant in Congress and in ground-level negotiations between parents and schools. In welfare policy, courts successfully transformed the administration of AFDC, more than doubling the participation rate in the program (that is, the number of individuals who were eligible for assistance who actually received it). While there was a considerable backlash against the court's reforms, it took a quarter-century for them to be ripped apart root and branch (as I argued in my book Whose Welfare?). Melnick's main point is that, while Rosenberg claims that the elected branches have resources to overturn reforms by the courts that they disagree with, court action gives its supporters significant strategic advantages, since playing defense in the American system of separation of powers is much easier than playing offense. Court decisions are the "opening bid," to put it slightly differently, in a system in which getting to make the first move matters a great deal.

Finally, consider on the right the case of Kelo v. New London. The libertarian Institute for Justice sunk an enormous amount of resources into the case, and lost when the Supreme Court was unwilling to disrupt deeply entrenched elements of local land use policy. This would seem to be a good case for Rosenberg—apparently conservatives are also victims of the "flypaper Court." Not so fast. IJ quickly turned around and mobilized against the Court's decision, leading to widespread grass-roots mobilization and (uneven, but remarkably rapid) change in state-level policy. There is no way that IJ could have produced this without the high-profile ritual of a Supreme Court case (I discuss this briefly in my forthcoming book, The Rise of the Conservative Legal Movement).

I could go on, but the basic point is clear. Litigation, at least in a number of important cases, works. And it helps produce national level policy change. It does so because, as Melnick points out, legal activists aren't as dumb as Rosenberg thought they were. The worst element of The Hollow Hope is its generally condescending attitude toward interest groups that use litigation. In fact, as Mike McCann and others have also argued, most serious legal movements use a combination of action in court and in other venues, and in fact use court action to strengthen their hand in those other areas. Rosenberg is right, I suppose, that some of the most naïve images of unilateral court action are mistaken. But this is a case where, had he not taken so many activists at their word, but dug underneath to their actual strategy, he might have recognized that they were aware of some of the limits of courts, but also knew of important strategic resources that court action can provide when combined with other tactics.

Rosenberg's book was, all that said, a major accomplishment. It took the air out of a lot of people's sails. But taken on its own, it is not a good guide to the role that litigation can actually play in producing legal change.