Social Progress & the Courts

Three decades ago, when Gerald N. Rosenberg answered the question posed by his book’s subtitle—“Can Courts Bring About Social Change?”—with a firm no, the response among his intended audience in the legal academy was one of “shock and disbelief.”¹ And no wonder. Although the Warren Court of the 1950s and 1960s was a fading memory by 1991, when the first edition of The Hollow Hope appeared, many liberals remained captive to a romantic vision of the Supreme Court harnessing the Constitution as an engine of social progress. After all, in the post-Warren era, hadn’t a more conservative Court recognized a right to abortion? Hadn’t it institutionalized affirmative action in the nation’s colleges and taken major steps toward a jurisprudence of women’s equality? Who was Rosenberg, a first-time author and little-known assistant professor at the University of Chicago, to throw cold water on such a dream?

The first edition of The Hollow Hope was followed by a second in 2008 and a third in 2023. Along the way, Rosenberg’s scandalous book acquired a kind of iconic status as a work of contrarian scholarship with the power to reach outside the academy and let serious readers in on the secret that the liberal vision of the Court was a mirage. Scandal became, as it so often does, conventional wisdom. Rosenberg, who continues to teach law and political science at Chicago, never changed his message, but the judicial climate changed around him.

By 2008 many liberals, of whom Rosenberg is one, were struggling to protect the gains of earlier years and had stopped expecting much good to come from the courts—the Supreme Court in particular. Today, trading disenchantment for cynicism, a new generation views the Court as an obstacle to progress, or worse: as an institution bent on erasing much of the progress of the past half-century. Proposals for curbing its power, once anathema in legal academia, are now embraced by younger constitutional scholars, including in testimony to a recent White House commission.²

Rosenberg would be entitled to a triumphant “I told you so” but for one dramatic development that departs from the pattern: Obergefell v. Hodges, the 2015 Supreme Court decision that recognized a constitutional right to same-sex marriage. At the time of the second edition of The Hollow Hope, the movement for marriage equality seemed to have hit a wall. In 1996 a backlash against early gains in state courts had prompted Congress to enact the Defense of Marriage Act (DOMA), which barred federal recognition of same-sex marriages that a state might authorize and was signed into law by President Bill Clinton.

Forty-five states adopted their own versions of DOMA. With Republicans exploiting the issue as culture-war fuel, there is some evidence that the continuing backlash contributed to George W. Bush’s reelection victory in 2004. In 2008 California voters approved Proposition 8, overturning a decision by the state’s supreme court that had recognized same-sex marriage as a right under the California constitution. “The problem is that activists for same-sex marriage turned to courts too soon in the reform process” before public support had moved significantly in their direction, Rosenberg declared that year. “The result of litigation under such conditions may be to set back the movement rather than to produce positive change.”

“Boy was I wrong!” Rosenberg exclaims now, his pessimism refuted not only by the Obergefell decision but by the rush of developments that preceded it. By the time the justices heard arguments in Obergefell in April 2015, the Court had overturned the Defense of Marriage Act, and same-sex marriage had become legal in thirty-five states—by legislation or popular referendum in eleven and by state or federal court order in twenty-four. Rosenberg’s challenge in the new edition of The Hollow Hope is to explain what happened. With the landscape having changed so dramatically on the eve of the ultimate decision, what part did courts actually play? Does the trajectory of same-sex marriage validate or undermine the essential premise of Rosenberg’s project?

Rosenberg’s theory, laid out unchanged through the book’s three editions, is that courts labor under structural constraints that will almost always deprive them of the ability to bring about significant change. One such constraint lies in the US Constitution itself; the Bill of Rights, phrased largely as a set of restraints on governmental authority, grants few individual rights. (Rosenberg’s focus is on the federal courts, although he occasionally mentions state courts, which often have more leeway to interpret their own state constitutions.) Precedents and legal norms usually keep courts from venturing far into new territory. Another constraint is the need courts have for cooperation from the elected branches of government. A court intent on social reform lacks the tools of a policymaker and the power to make things happen in society.

These constraints can be overcome, Rosenberg maintains, but only under certain conditions. Either significant change must have already occurred, so that courts are acting as consolidators rather than first-order change-makers, or nonjudicial forces—elected officials, political or cultural elites, or the marketplace—must have rallied to give courts the support they need. These conditions, Rosenberg insists, are rare. Without them, change seemingly brought about by courts is illusory, and progress will inevitably stall or wither away.

He is on strong ground in using as his primary case study the history of civil rights enforcement in the years after Brown v. Board of Education (1954). His argument that the Supreme Court’s contribution to the march toward racial equality was a good deal less consequential than the veneration of that decision implies seems sadly self-evident today, with the affirmative action experiment in ruins and the Voting Rights Act eviscerated. Back in 1991, the argument landed like a blow to the memory of heroic litigators and wise justices. But the facts are on Rosenberg’s side.

For the first decade after Brown, he points out, “virtually nothing happened.” By 1964 only 1.2 percent of Black children in the South were attending school with white children. Only after the congressional civil rights legislation of the 1960s, combined with vigorous executive branch enforcement, could progress begin to be measured; between Brown and those nonjudicial developments, “the actions of the Supreme Court appear irrelevant to desegregation.” By 1972 enforcement of the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965 resulted in 91.3 percent of Black students in the South attending school with whites. “Courts contributed virtually nothing directly to civil rights in the decade when they acted alone,” Rosenberg observes.

To be clear, his argument is not that litigation was fruitless, but rather that its utility proved to be sharply limited. He credits the NAACP, in the years leading up to Brown, with having “worked long and hard to create the kind of precedent and beliefs within the broader legal culture that could allow the Court to strike down segregation.” In other words, the movement’s lawyers strategically overcame significant constraints—the absence of favorable legal precedents and the lack of support in the legal culture—that Rosenberg’s theory identifies as disabling courts from creating change. And a favorable political climate, while it lasted, gave the federal courts what they needed: implementation.

But then the constraints reemerged. The courts lost their allies both among politicians and in the culture as a whole. The Nixon administration pulled back on civil rights enforcement. As the challenge to segregation moved from southern cities to northern suburbs, support among white Americans for integration shriveled. (Rosenberg uses the word “abandonment.”) Courts began to release school districts from judicial supervision, and by the mid-1970s the Supreme Court, with four Nixon appointees, curbed the use of judicial remedies aimed at increasing or sustaining integration. The Court was generous in declaring that formerly segregated school systems had become sufficiently “unitary,” so that the busing required by earlier court orders was no longer needed.

Resegregation inevitably followed. While in 1976, 45.1 percent of Black students in the South were attending majority-white schools, the percentage had fallen to 18.5 by 2018. “Courts, acting alone, are unable to produce much desegregation but are effective at allowing resegregation to occur,” Rosenberg observes. Looking back over the evanescent judicial support for civil rights, he concludes:

The problem was not in the Court but in the broader society itself. Looking to the courts to overcome racism and racial segregation without the presence of one or more of the conditions for judicial efficacy is unlikely to succeed.

While the Supreme Court’s decision last June in the Harvard and University of North Carolina affirmative action cases came too late for inclusion in this book, that development fits Rosenberg’s thesis neatly. There was little doubt that affirmative action had lost cultural and political support, to the extent that it ever had a firm claim on either; a Gallup poll published early this year, which Rosenberg surely would have cited, found support for the Court’s decision among all racial groups, albeit narrowly among Black Americans.

What about abortion? The Supreme Court’s decision overturning Roe v. Wade came in June 2022, as Rosenberg’s manuscript was nearly finished. He was able to insert sixteen pages of reflection and prediction, informed by the outcome of the August 2022 referendum in which Kansas voters decisively rejected an anti-abortion amendment to the state’s constitution. “The Dobbs decision may create a backlash in support of abortion access and political candidates who favor it,” he predicts. And further,

over the long run overturning the constitutional right to abortion may have less of an effect on abortion access and the number of abortions than anti-abortion activists hope for and pro-choice activists fear.

Indeed, data collected by the Guttmacher Institute indicate that there were more abortions in 2023 than before Dobbs. (The report that Guttmacher issued in January extrapolated from data covering the first ten months of the year.)

But Rosenberg’s powers of clairvoyance are not perfect. In discussing the conditions that favor continued access to abortion, he emphasizes opposition to Dobbs by many of the country’s major corporations and employers. When the Indiana legislature banned nearly all abortions, he notes, one of the state’s flagship employers, Eli Lilly, warned that the law would force the company “to plan for more employment growth outside our home state.” Cummins, another major Indiana-based employer, said the ban would “impede our ability to attract and retain top talent.” To no avail: the legislators didn’t blink, and the Indiana Supreme Court upheld the ban. Between last August, when the law took effect, and the end of 2023, there were exactly seventeen legal abortions in the state of Indiana, population 6.8 million.

Rosenberg’s account of the Supreme Court’s early involvement in the abortion issue fits his thesis. He shows that it was much more a follower than a leader. By January 1973, when the Court decided Roe, the requisite conditions were in place to overcome the constraints that would otherwise have impeded it. Support for legalizing abortion was growing, among both elites—the country’s leading legal and medical organizations—and the public at large. Eighteen states had already liberalized their abortion laws. And there were recent precedents for the justices to call on, most notably Griswold v. Connecticut (1965), which established a constitutional right to birth control. Contrary to popular understanding, Rosenberg notes, Roe was no bolt from the blue. The decision, “rather than starting a social revolution, merely acknowledged one in progress and let it continue.”

What, then, has gone wrong? Rosenberg avoids the common trap of blaming the Supreme Court and Roe for having caused a huge backlash that will forever deform American politics. In fact, as he notes, majority support for legalized abortion has remained remarkably steady. There was no generalized popular backlash. But there was clearly an anomaly requiring explanation. Rosenberg discusses several interlocking factors that over the years stripped away the conditions that had enabled and sustained Roe v. Wade.

White evangelicals with strong anti-abortion views entered Republican politics in the 1970s, fueling Reagan’s campaign in 1980 and becoming an indispensable part of the party’s base. After great success in the 2010 midterm elections, Republicans were in control of a majority of the state legislatures, and those legislatures began churning out anti-abortion measures. During the decade before Dobbs, obstacles to abortion access rose ever higher in many parts of the country—not, Rosenberg explains, as the result of popular opposition to abortion but as “the result of a federal system in which minorities with intense feelings can undermine constitutional rights.” After the 2010 Census, Republican legislators used their power to ensconce themselves in safe districts. “Having done so they were able to reward their anti-abortion constituents by enacting unpopular abortion restrictions without fear of electoral consequences.”

After describing the political capture of the machinery of state government, Rosenberg might well have turned his attention back to the Supreme Court to show how it was captured as well. Dobbs, after all, was no more a bolt from the blue than Roe was; as a presidential candidate in 2016, Donald Trump promised that a Supreme Court populated by his appointees would overturn Roe “automatically.” But the Court’s internal dynamic is not where Rosenberg’s interest lies; Amy Coney Barrett, whose confirmation in 2020 to the seat left empty by Justice Ruth Bader Ginsburg’s death helped make Dobbs possible, does not merit an index entry. For Rosenberg, courts are not so much actors as acted upon, by the forces that constrain them and the conditions that empower them.

According to the Census, there were 1.2 million “same-sex couple households” in 2021, including more than 700,000 married couples. What did courts have to do with that?

Rosenberg intended his third edition to answer that question, and here is where he struggles. Despite his “Boy was I wrong!” mea culpa, he remains unpersuaded that any of the numerous courts that ruled on the question of marriage equality over a period of more than twenty years were change agents. Rather, he claims, “while courts likely played some role they more likely reflected rather than produced change.”

He is certainly correct that public attitudes toward homosexuality in the years leading up to Obergefell moved dramatically toward acceptance. He cites several studies documenting the growing acceptance of LGBTQ individuals and their claim to equal rights, including one that found “more and more rapid change in attitudes towards gay rights in the past thirty years in the United States than there ever has been in recorded attitudes in the United States on any issue.” A graph depicting answers to Gallup’s question “Are gay or lesbian relations morally acceptable or morally wrong?” shows that while more than half answered “morally wrong” in 2001, the two lines converged in 2008, when “morally acceptable” began a steady upward climb. It was Rosenberg’s bad luck that 2008 was the year he published his second edition, with its gloomy appraisal of the route to marriage equality.

Rosenberg now analogizes these “powerful cultural changes” to a “glacier whose vast bulk is hidden beneath the surface,” adding: “It was these changes that allowed the US Supreme Court to overcome the constraints on judicial action and provided the conditions that made success possible.” Assuming that is correct, the question remains: What propelled these profound changes? Was any of it—not all, certainly, but some—attributable to litigation? Rosenberg’s answer is a nearly unqualified no: “Importantly, the data show that these changes were largely independent of judicial action.”

“The data show…” This is Rosenberg the empiricist speaking, the political scientist who in a 2000 law review article mocked legal academics for their lack of “training to be contributors to empirical political science scholarship about law and courts.” As a result, he said, law professors “routinely make absurd claims that would be rejected out of hand by any political scientist familiar with the literature in the field.”³ Being neither an empiricist nor a political scientist of any sort, I can’t evaluate that generalization. But having tracked the judicial trajectory of LGBTQ rights at close hand for many years, from the Supreme Court’s dismissal, in Bowers v. Hardwick (1986), of a constitutional challenge to sodomy laws as “at best, facetious” through its embrace of the same challenge seventeen years later in Lawrence v. Texas (2003), the decision that led ultimately to Obergefell, I can’t shake the feeling that Rosenberg is in some way the prisoner of his data. Something is missing. Is it possible that some parts of that vast submerged glacier just can’t be measured with meaningful precision?

Rosenberg’s tools throughout the book are those of political science: opinion polls to see what people were thinking and media studies to assess the basis on which they were forming their opinions. When does an issue break through in public consciousness and become salient? And does that moment coincide with an external event, such as a judicial decision? Articles in The New York Times provide the conventional measure of salience, not only because the newspaper is read by elites but because its news judgment tends to set the agenda for other media outlets. If the editors of the Times deem something to be important (Hillary Clinton’s e-mails?), it becomes important.

Searching the Times for articles about marriage equality beginning in the 1980s, Rosenberg found very few, even after the Supreme Court of Hawaii in 1993 took a surprising and consequential first step toward recognizing same-sex marriage as a constitutional right. “If court decisions brought the issue of marriage equality to the media, the 1993 data don’t provide evidence for the claim,” he concludes.

Here is where I think Rosenberg’s painstakingly collected data fail him. As Adam Nagourney’s account of recent New York Times history recalls—and as was well known in journalism circles—the newspaper was notably, even shockingly, slow to cover issues of crucial concern to the LGBTQ community.⁴ The Times failed to run a front-page story about AIDS until May 1983, when, two years into the crisis, the Public Health Service declared the disease to be its number one priority.

Nagourney recounts that Arthur Ochs Sulzberger, the publisher of the Times until 1992 and its chairman until 1997, wanted to fire the editor of the Sunday travel section for running an article about an all-gay cruise. The editor’s boss, Max Frankel, refused the publisher’s request “but agreed to no longer publish similar stories in the future.” “My father was anti-gay,” Sulzberger’s son and successor as publisher, Arthur Sulzberger Jr., told Nagourney in 2017. So was the paper’s longtime executive editor, A.M. Rosenthal, who vetoed an editor’s proposal for a series on homosexuality in New York City and who wrote in his private journal, bizarrely, that he was worried about a “homosexual clique” in the newsroom.

Regardless of whether the Times accurately deemed the Hawaii decision, Baehr v. Lewin, to be lacking in news value, the ruling had a stunning impact within the gay community. It caused a “sensation,” William N. Eskridge Jr. and Christopher R. Riano reported in Marriage Equality: From Outlaws to In-Laws (2020), their history of the movement. “Thousands of lesbians and gay persons and couples began to think seriously about gay marriage for the first time.” The early success of the effort in Hawaii ended in failure when the voters responded to the court by amending Hawaii’s constitution to define marriage as limited to one man and one woman. But the short-lived victory had long-term effects in inspiration and mobilization. That pivotal moment may elude precise documentation on a graph. But it happened.

Rosenberg would have done well to consult Eskridge and Riano’s mammoth volume. In more than a thousand pages and with nearly excruciating detail, they chronicle the successes, defeats, and turning points in the movement that culminated in Obergefell. Not all those crucial moments involved courts, but many did. One came in 2003, when the Massachusetts Supreme Judicial Court ruled for marriage equality on the basis of the state’s constitution:

The day Massachusetts started issuing marriage licenses, May 17, 2004, was the empirical turning point—the Cinderella moment. Because one state opened the door to gay marriage and the sky did not fall, lesbian and gay couples came out all over the country, and public opinion began to change.

For this third edition, Rosenberg might also have taken account of a 2011 law review article by Douglas NeJaime, “Winning Through Losing,” which contended that Rosenberg’s analytical method discounted the ability of social movements to convert losses in court into victories in the outside world. This “underdeveloped approach toward cause lawyering fails to capture the multiple ways in which social movement advocates understand and seize on the radiating effects of litigation,” NeJaime argued. Using as an example the stinging defeat administered in 1986 by the Supreme Court in Bowers v. Hardwick, NeJaime observed that a loss in court can be effective in “inspiring outrage, strengthening resolve, and building a more fervent feeling of entitlement in ways that mere litigation process (and certainly litigation victory) cannot.”⁵ In the defeat in Bowers, he argued, lay the seeds of its eventual repudiation.

“Would there be nationwide marriage equality today if proponents hadn’t turned to litigation?” Rosenberg asks. His answer is that broad changes in society would have made eventual victory inevitable, although not as soon as 2015. At the most, judicial decisions “changed the timing”; had those changes not occurred first, courts could not have made even so modest an impact.

In this way, Rosenberg declares victory: hypothesis proved. External conditions enabled courts to overcome their built-in constraints. Society spoke, courts responded. It is in many ways a satisfying conclusion, until a nagging question arises: What happens when the constraints no longer constrain? That was Dobbs, after all. The Supreme Court neither sought nor needed a dialogue with society. All it required, it turned out, was five votes.