why we shouldn’t expect the court to bring about social change
The Wal-Mart case, which has occupied so much discussion on orgtheory of late, is disappointing to many sociologists and organizational scholars because it suggests that courts cannot take a stand against gender discrimination when discrimination is implicit and covert. Sure, it would be easy for courts to decide to rule against a defendant that explicitly discriminated against a certain class of people with a formal policy, but Scalia et al.’s decision puts a high bar on the qualifications necessary to identify class discrimination. It’s no wonder that gender scholars, in particular, would be upset by this ruling. In this day and age, the most diffuse forms of discrimination are subtle and implicit. If covert discrimination is going to be overcome, we need courts that are willing to recognize these more subtle forms of influence. But should we have really been surprised by this outcome? Setting aside the political orientation of the current Court, I think that this decision is more or less in line with the history of the Court’s decision-making.
Courts are rarely, if ever, engines of social change. After reading this post by Yglesias, I was reminded of a really interesting book I read back in my grad school days that makes a case for why courts are not usually instigators of social reform. Gerald Rosenberg‘s The Hollow Hope argues that courts, and the Supreme Court in particular, have constraints placed on them that keep them from promoting social reform, and that we should only expect the Court to take a more change-oriented approach when certain conditions are met. The constraints are:.
- Courts are bounded by constitutional rights that prevent that from hearing many reform-oriented cases.
- The judicial branch is not sufficiently independent from other governmental branches to promote reform.
- Courts lack the capacity and the tools to actually implement social reform (and therefore it is pointless for them to pursue a reformist agenda).
This is not to say that courts can’t every be reformist in their decisions. Roe v. Wade is often thrown out as a classic example of Court-initiated reform. So Rosenberg, using these cases as empirical evidence, identifies certain conditions that alleviate the constraints placed on courts.
- Ample legal precedent paves the way for change.
- A proposed reform is supported by other branches of government.
- A proposed reform is supported by a majority of citizens or at least is not opposed by most citizens.
In the latter case, Rosenberg also posits that courts are more likely to introduce reforms when incentives are in place to enforce compliance or when there is a path for market or government implementation of a reform. Rosenberg maintained that “none of the conditions allowing for Court effectiveness are regularly present with women’s rights” (213). Except for Roe v. Wade, women’s rights reform through the courts has mostly been ineffectual. A lack of non-judicial incentives, fragmentation among women’s activist groups, and a failure to mobilize public support for plaintiffs has meant that little reform for gender equality has occurred via courts.
In those cases where the Court has been associated with larger social change (Roe v. Wade; Brown v. Board of Education), the cultural and political climate had often changed sufficiently beforehand, putting courts in the role of rubber-stamping the change into effect. For example, before Roe v. Wade the number of abortions was already on the rise. Post-1973 increases in the abortion rate merely continue this trend (in fact, the rate seems to depress somewhat after the ruling and levels off completely by 1980). Rosenberg contends that growing cultural acceptance of abortion and political support for the liberalization of contraception and abortion created a judicial climate that made legalizing abortion acceptable. Roe v. Wade didn’t initiate social change, it simply recognized the “evolving state of affairs” and was “more like cutting the ribbon on a new project than its construction” (338).
I’m not saying that the Court shouldn’t have ruled differently in the Wal-Mart case but it’s not entirely surprising that they did not go out of their way to liberalize criterion for class certification. As Rosenberg stated, groups that pin their hopes for social change on the courts are likely to be disappointed. “[C]ourts act as ‘fly-paper’ for social reformers who succumb to the ‘lure of litigation”; they are being lured “to an institution that is structurally constrained from serving their needs, providing only an illusion of change” (341). If activist groups are disappointed in the ruling, then they should put that angst into mobilizing more political and cultural support for anti-discrimination laws. There is more legislative and cultural work to be done to prepare the Court for future discrimination cases.
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