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2006-7 National Service Topic Guide

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Introduction

The foundation of the Hollow Hope Disadvantage is a book by Gerald Rosenberg called HOLLOW HOPE:  CAN THE COURTS BRING ABOUT SOCIAL CHANGE?  Rosenberg largely answers this question in the negative, claiming that the courts are ineffective at producing social change.  He articulates three general constraints that the court operates under that inhibit it:

1. Limited opportunities for rulings.  Since constitutional rights are generally limited and do not specifically address many contemporary issues (such as welfare), the courts are generally bared from, and cannot credibly rule on, important issues of social reform.

2. Lack of judicial independence.  The judiciary is not independent enough from the other branches of government to lead their own charge for social change.

3. Implementation.  Courts lack the requisite tools to implement any socially progressive policies that they may develop.

The Links and Internal Links

In addition to these defensive arguments against the ability of the courts to produce social change, Rosenberg also identifies a number of reasons why court action may actually undermine the prospects for social reform.  The critical argument he makes that sets-up the disadvantage is that when the courts make liberal decisions they tend to attract subsequent litigants, particularly group litigants, who are hoping the courts will also make decisions favorable to their cause.  Rosenberg cites examples of environmental groups who turned to the courts after the courts made environmentally-friendly decisions, of pro-choice activists who turned to the Supreme Court after its decision in ROE v. WADE, and a number of others. 

Rosenberg argues that this is problematic because the rarely support additional protections for these groups.  Instead, these groups just burn limited economic and personnel resources and consequently undermine the ability of these groups to obtain progressive social change.

The basic evidence that is needed to execute the Hollow Hope Disadvantage is included in this volume.  There are two scenarios. The first scenario is that court action will attract progressive social movements out of the Congress where they are needed to fight against potential Bush tax cuts. The second scenario argues that progressive, pro-choice interests need to stay active in the legislature to protect abortion rights.

There is a large substantive debate about the ability of the courts to achieve social reform. I won't go through the merits of all of the individual arguments here.  Those arguments are contained in the briefs and a relatively self-explanatory.

I do, however, want to review a number of more general problems with the disadvantage that teams running the argument need to overcome.  First, often the scenario run makes little sense against the particular affirmative.  For example, why are liberal groups who are trying to prevent tax cuts going to go to the courts simply because the courts protect the rights of individuals with disabilities?  This is a good argument against the disadvantage that is rarely made. 

Second, just because the courts issue one liberal decision does not mean that the liberal groups are going to flock to an otherwise conservative court.  This argument assumes that these groups are so incredibly stupid that they do not know anything about the make-up of the current court.   If this is the case, then how are these movements going to have the wherewithal to execute sophisticated political strategies.

Third, you can look through the recent court docket (http://www.supremecourtus.gov/) to find a recent decision that protects rights.  Although the court is generally very conservative, they do often, or at least occasionally, issue opinions that can be described as liberal.  If one liberal decision is all that it takes to attract the social movements, then any of these other liberal decisions should do it.

Although I think these arguments are particularly damning against the general Hollow Hope Disadvantage, I also do not think that you should hesitate to run it.  Most teams will not make these simple, logical arguments against the disadvantage.  Mostly, they will just make the carded arguments such as the ones on the prepared briefs that are included in this book.  You are well-prepared to answer those.

Hollow Hope As a Net-Benefit

At first glance, it appears simple to run the Hollow Hope Disadvantage as a net-benefit to the Courts Counterplan.  On face it appears that court action will encourage social movements to go to the courts, whereas if Congress acts those movements are likely to direct their energy to the legislature.

The problem is that the permutation to do both is a more powerful argument against the Hollow Hope net-benefit.  Doing both could overcome at least a lot of the risk that court action will attract social movements away from the legislature and to the courts.

Rosenberg himself makes the argument that courts are capable of stimulating positive social change when other actors (such as the Congress) offer incentives for compliance and when the courts can provide an excuse for other political actors to implement policies (see the permutation discussion above).

Despite the quality of this evidence from Rosenberg, the negative can still win this argument as a net-benefit.  The evidence as to how the movements will drain the resources of the groups.

Hollow Hope Disadvantage Shell

A. UNIQUENESS: AMERICAN POLITICS ARE TURNING LEFT AND TO THE LEGISLATURE

Ross Sadler, Director, New York University Law Center for New York City, DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT, 2004, p. 151

Even the enthusiasts for democracy by decree have grown to doubt ifs efficacy and have begun to search for new ways to achieve their goals for society. Our colleague Nadine Strossen, president of the American Civil Liberties Union, informs us that advocacy organizations have shifted resources from litigation to lobbying, public education, political organizing, and other avenues of reform.

B. LINK: RIGHTS VICTORIES ATTRACT NEW LITIGANTS IN HOPES OF OBTAINING ADDITIONAL VICTORIES

Hugh M. Davis, Jr., Co-founder, Constitutional Litigation Associates, 1998 (DETROIT COLLEGE OF LAW AT MSU LAW REVIEW, Summer, p. 650)

Too often, the reaction of the judicial system is to curtail rights and discourage suits because every new "right" or cause of action draws a swarm of claimants, deserving or not.

C.  INTERNAL LINKS

1. SUCCESS IN THE COURTS DIVERTS REFORMERS TO THE COURTS AND AWAY FROM THE LEGISLATURE

Gerald Rosenberg, Political Scientist, Chicago, 1991 (THE HOLLOW HOPE, p. 341)

It is, to put it simply, that courts act as "fly-paper" for social reformers who succumb to the "lure of litigation." If the constraints of the Constrained Court view are correct, then courts can seldom produce significant social reform. Yet if the groups advocating such reform continue to look to the courts for aid, and spend precious resources in litigation, then the courts also limit change by deflecting claims from substantive political battles, where success is possible, to harmless legal ones where it is not.

2. SOCIAL MOVEMENTS SOLVE PEACE, ENVIRONMENT, POVERTY, CRIME, DRUGS

Harold McDougall, Political Scientist, Catholic, 1989 (CORNELL LAW REVIEW, November, p. 119)

In an important way, social movements have sought to create the shared republican values suggested by the Constitution and expressed more forcefully in the Declaration of Independence. Social movements cannot achieve a total incorporation of the civil community into their interpretive community. Social movements which simultaneously adhere to their principles and engage the civic community in dialogues, however, may alter the civil community's base-line assumptions on issues such as peace, the environment, poverty, the family, crime, drugs, and death.

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