Limits to Litigationrnby Jim ChristiernThe Hollow Hope: Can Courts BringrnAbout Social Change?rnby Gerald N. RosenbergrnChicago: The University of ChicagornPress; 424 pp., $29.95rnGerald N. Rosenberg, an assistantrnprofessor of political science andrnan instructor in law at the University ofrnChicago, has some simple advice for activistsrnwho think a United StatesrnSupreme Court ruling is an end-all: notrnonly are you wrong, but your money isrnbetter spent out of court than in court.rnIn The Hollow Hope, Rosenberg takesrnto task the civil and women’s rightsrnmovements for making the SupremernCourt the battleground for socialrnchange. Looking at Brown v. Board ofrnEducation and Roe v. Wade, the mostrncelebrated legal cases of these respectivernmovements, Rosenberg finds thatrnneither case provided for the substantialrntype of social reform activists currentlvrncredit them with producing.rnIndeed, Rosenberg disagrees from thernoutset with the long-held litigious strategyrnof many in the civil rights movement,rnin which Brown is spoken of withrnawe and reverence. Rosenberg’s researchrnreveals that the Brown ruling was hardlyrn”the most important political, social,rnand legal event in America’s twentiethrncentury history” or the “paradigmaticrnevent” civil rights lawyers claim. Instead,rnhe finds the Supreme Court to havernbeen impatient but unable to implementrnBrown until the Civil Rights Act ofrn1964—a full decade later—owing to arnlack of supportive political and publicrnopinion.rnThe numbers Rosenberg presents arernconvincing and bear out his contentionrnthat congressional legislation, presidentialrnresolve, and evolving public opinionrndid more for blacks in Southern publicrnschools than did the Brown ruling. Forrnexample, in 1959-60, five years afterrnBrown overturned Plessy v. Furguson’srnseparate-but-equal ruling, only .16 percentrnof black children in the South werernattending elementary and secondaryrnschools with white children. By comparison,rnfive years after the Civil RightsrnAct in 1969, 32 percent of black childrenrnin tlie South had been integratedrninto the region’s public schools. “Thernstatistics from the Southern states arerntruly amazing. For ten years, 1954-64,rnvirtually nothing happened,” says Rosenberg.rn”Despite the unanimity and thernforcefulness of the Brown opinion, thernSupreme Court’s reiteration of its positionrnand its steadfast refusal to yield, itsrndecree was flagrantly disobeyed. . . . AsrnJudge Wisdom put it, writing in the JeffersonrnCounty case, ‘the courts actingrnalone have failed.'”rnCongress, the executive branch, andrnthe federal agencies, following the passagernof the Civil Rights Act of 1964,rnRosenberg argues, were the real catalystsrnfor desegregation reform in the South.rnHe reminds the reader of the power ofrnthe federal purse: “When the federalrngovernment made money available tornlocal school districts that desegregated, itrnloosed a powerful and attractive forcernon segregated schools. This was particularlyrntrue in the South because that regionrnspent less on schools, as measuredrnby the percentage of total personal income,rnthan any region in the country.”rnFederal funds definitely seemed to havernspurred social change. Mississippi, forrnexample, in 1963-65 received only $13rnmillion in federal funds for its staternschool system and had only .02 percentrnof black children in school with whiternchildren. By 1971, 91.5 percent of Mississippi’srnblack children attended integratedrnpublic schools, which were drawingrn$99.4 million in federal funds.rnRosenberg also credits leadership atrnthe executi’e level for having contributedrnto the desegregation movement byrncreating a “political climate” in whichrnBrown could be enforced. It is hard tornargue against this point, considering thernevolution from the Eisenhower administration’srncautious approach toward civilrnrights to the Johnson administration’srnenforcement of the Voting Rights Actrnof 1965. Far more important than presidentialrnfiat, however, is the fact thatrnAmerican society as a whole was becomingrnless tolerant of segregation andrnmore sympathetic toward the civil rightsrnmovement as events and the people whornlaunched them—the Montgomery BusrnBoycott, the Little Rock crisis, the FreedomrnRiders, the murders of Medgar Eversrnand three other civil rights workersrnnear Philadelphia, Mississippi, and thernBirmingham Demonstrations—werernbrought to the attention of the publicrnthrough the mass media. “While itrnmust be the case that Court action influencedrnsome people,” writes Rosenberg,rn”I have found no evidence that thisrninfluence was widespread or of muchrnimportance to the battle for civil rights.rnThe evidence suggests that Brown’s majorrnpositive impact was limited to reinforcingrnthe belief in a legal strategy forrnchange of those already committed tornit.”rnLikewise, he says, for Roe v. Wade:rn”Relying on the civil rights movementrnas an example of a successful use ofrncourts to produce significant social reform,rnand assuming ‘congruence betweenrncivil rights and women’s rights,rngroups were formed to litigate women’srnrights issues. Money, time, and talentrnwere poured into the litigation strategy.rnWhat were the results?” Not much.rnAbortion was already a socially—but notrnlegally—acceptable procedure by therntime of Roe in 1973. According tornRosenberg’s numbers, the rate of increasernof abortions from 1970 to 1973rnis not markedly different from that betweenrn1973 and 1980. What is more,rnthe real revolution with regard to abortionrnrights came prior to Roe—the highwaterrnmark of the women’s movementrn—and occurred within the staterncourts, the forums today’s abortionrnrights activists despise and dread. BeforernRoe, the federal government treatedrnthe question of abortion with “benignrnneglect,” as a matter for the states—rnmany of which Rosenberg describes asrnhaving been extremely recepti’e to abortionrnrights—to decide. “In 1967, therernwas an outbreak of legislative activity tornliberalize abortion law. Reform billsrnwere introduced in 28 states, includingrnCalifornia, Colorado, Delaware, Florida,rnGeorgia, Maryland, Oklahoma, NewrnJersey, New York, North Carolina, andrnPennsylvania.” By the early 1970’s benignrnneglect was firmly entrenched:rn”Despite his personal anti-abortion beliefs.rnPresident Nixon did not take activernsteps to limit abortion. While hisrnopponent in the 1972 presidential election.rnSenator Ceorge McGovern, wasrndubbed by some Republicans the ‘triplernA’ candidate (Abortion, Acid, Amnesty),rnwhere it mattered the Nixon administrationrnwas silent.”rnAfter celebrating their victory in Roe,rnwomen’s and abortion rights activistsrnfailed to protect their flanks in Congress,rnwhere anti-abortion legislation was startingrnto breed. They also lost sight of theirrngoals at the community- level, where thernpro-life movement was in its fetal stage.rn36/CHRONICLESrnrnrn