Academic journal article The Journal of Race & Policy

A Hollow Hope? Social Change, the U.S. Supreme Court and Affirmative Action

Academic journal article The Journal of Race & Policy

A Hollow Hope? Social Change, the U.S. Supreme Court and Affirmative Action

Article excerpt

INTRODUCTION

In 1978, Regents of the University of California v. Bakke set in motion decades of US Supreme Court decisions considering the constitutionality of affirmative action.1 Many viewed the decision as a victory for those seeking to foster diversity in an educational and employment environment that lacked diversity for racial and ethnic minorities. With continued Supreme Court litigation in affirmative action decades after Bakke, the decisions in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin (2016) were welcomed as victories reaffirming the constitutionality of affirmative action programs. However, these and other Supreme Court decisions have served as a catalyst for opponents challenging affirmative action programs by gaining support for state legislation banning affirmative action policies in hiring and admissions in higher education. Some viewed the then record-breaking number of 107 participating amici, 75 of whom supported the University of Michigan in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), as reflective of the public's position on the policy (Franze and Anderson, 2016; University of Michigan, 2003). Furthermore, proponents of affirmative action considered the Court's decision upholding the constitutionality of affirmative action as a step toward achieving racial diversity, and as a tool to assist in mitigating the effects of discrimination. Minorities seeking protection and the declaration of rights often consider the Supreme Court as the primary institution to cause social change simply by rendering a decision (McCann, 1994). However, the often prevailing view of the Supreme Court's ability to cause social change may be a "hollow hope."

A HOLLOW HOPE?

In Gerald Rosenberg's seminal book The Hollow Hope: Can Courts Bring About Social Change?, he argues that the Supreme Court is an inept institution to cause significant social change. By examining landmark decisions such as Brown v. Board of Education (1954) and Roe v. Wade (1973), he posits that both scholars and the public perceive these decisions as the primary catalyst for desegregating schools and declaring abortion a fundamental right protected under the Constitution (Rosenberg, 2002, 6). For Brown, the conventional public perception is that the Supreme Court's decision was the primary factor in desegregating schools. However, Rosenberg challenges this notion by arguing that the Court did not cause social change in the area of school desegregation because the Court, as an institution, is inept. He argues that the Court must have an outside agent, i.e, a supporting public or political institution, to effect such change. In drawing this conclusion, he establishes a framework to determine the limited conditions under which the US Supreme Court can produce social change.

Rosenberg differentiates between two views of the Court where it is either constrained and is unable to cause social change, or the Court is dynamic and can effect social change only under certain conditions (Rosenberg, 2003, 13-21). Rosenberg sets forth three reasons the Court is unable to cause social change pursuant to a constrained view of the Court. Under "Constraint I," he argues that the Court is constrained because the limiting character of constitutional rights impedes the Court's ability to effect social change. The Bill of Rights provides a limited number of enumerated rights. These rights provide for protections in the civil context which range from the freedoms of speech, press, and religion to protections in the criminal context such as the right to be free from unreasonable search and seizure. Not only is the scope of recognized constitutional rights limited, but it is also arduous to successfully advocate for the expansion of such rights. Because the Court is the final arbiter of only constitutional rights, the Court cannot permanently recognize nonconstitutional rights. Any court construing rights conferred by statute instead of the Constitution allows a legislative body to override the Court's decision. …

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