Consequences of Judicial Activism in the United States

The Impact of Judicial Activism in the United States

Gerald Rosenberg. The Hollow Hope: Can Courts Bring About Social Change?

In the article “The Hollow Hope: Can Courts Bring About Social Change?” by Gerald Rosenberg (2008), the author explores a most sensational topic in America today, “Can courts bring about change?” While Rosenberg (2008) clearly has a direct answer to this question, he abstains from overtly reaching this conclusion without the use of a background. Thus, the major theoretical aspects involved in the article include the comparisons between the Constrained and the Dynamic Court views that the author feels are the most dominant in America’s judicial system. Thus, by focusing on the Supreme Court, the author explores exactly how the court system has effected social change in the past and toward the end, he qualifies the Dynamic Court view as the most dominant and applicable form of analysis toward the court. 

Thus, what is the author’s main goals or central arguments in the paper? Firstly, the author recognizes that indeed, the courts are a significant part of the American culture, as they represent a most formidable branch of the social environment. The author argues that in a nation that is dynamic in both the political, social and economic aspects, the court system comes along as a check-and-balance element that aims to instrument and effect significant change. Another argument is that in America today, there are two major views towards the courts, the Dynamic view; where the court can actually effect actionable social change, and the Constrained view that supposes that the power of the courts is limited. In the article, the author thus works on solving this dilemma as he attempts to win readers into supporting his viewpoint, which is that whereas courts are an important part of social dynamics in America, they are not all powerful, as they are constrained with countless political and economic barriers. 

A major strength in the paper is that the author strives for balance as he analyses whether or not courts can really effect positive social change. Through the adoption of two different theoretical perspectives, the Dynamic and the Constrained view of the court in America, the author compares the successes of the court in reaching critical decisions that had a significant outcome in the society. For instance, while noting that the court played a significant role in effecting change for the civil and abortion issues in the past, a point which would support the Dynamic view, he notes that this impact was just on the legal front. In the long term, the social changes that were propelled by the court depended on the support of political and economic institutions too. A significant weakness, however, is that the article makes conclusions based on personal opinion a fact that undermines the ability of the author to present a formidable conclusion. For example, he says that since the courts supported abortion and civil right movements through their rulings, these events inspired these parties to cease their action as they celebrated their respective victories and ignored their causes. This conclusion assumes that the direct result of such action was court-instigated and working with such assumptions is dangerous as it negates the role of the courts in inspiring social change.

Nevertheless, I feel that the article’s consistency, in maintaining focus on the role of courts in effecting social change makes it valuable for future debates on the empowerment of courts as paths of social change. From the article, it became evident that while courts are considered significant in the society, they play a tertiary role compared to the executive and legislature, a fact that impedes it from effecting significant change in the American society. Therefore, the article proves itself significant in any larger debates on the legitimacy of judicial reviews in addressing and reviewing constitutions.

Stuart A. Scheingold. The Politics of Rights: Lawyers, Public Policy, and Political Change

The article by Scheingold (2010) explores an issue that has been significantly overlooked by scholars in the field, particularly those related to the role of litigation and associated players can play in influencing public policy. Essentially, the issues at stake in the study are those of the distinction between the litigators/lawyer’s role in helping the society achieve the redistribution of power or effecting influence in the political arena. Thus, the author chooses to explore the myth of rights and the role that litigation can play to effect critical change, such as focusing attention on an issue and helping the court to make decisions that have an impact on social change. 

The central argument by Stuart is that the myth of rights is working, that is every individual is entitled to their day in court from where they can enjoy their rights under social justice. Thus, there is a critical need for the exploration of the law-making process through the viewpoint of the often overlooked player in the legal process; the lawyer. The main hypotheses, therefore is the author’s need to answer the question on whether the lawyer has the ability, the drive and the power to influence political action. Another argument made is that despite the challenges thrown their way; these activist lawyers are well placed as agents of change, as they can mobilize action, political or otherwise. For instance, through legal tactics, these lawyers can win their cases in court and consequently reach the public by convincing them to appreciate and recognize their causes. Thus, legal tactics are concluded to be a direct path through which mobilization of support from the public can be achieved. 

A major strength from the article is that the author takes a stance towards legal tactics with the summation that while they might be dominant in influence; a fact of the matter is that they are simply unqualified as strategies for the achievement of social change. This conclusion is dominant as the authors reiterate it consequently in the hope that readers will recognize that lawmaking is not an effective path towards change. A notable weakness, however is that the author introduces a counter argument too late in the article, an instance that is not likely to change the conclusions formed by the readers. For instance, while there are various discussions on the limited role of litigation in mobilizing action and making significant strides in the making of policy or social change, the author fails to recognize the role of culture. Thus, the late introduction of the concept is hurtful to the efficiency of the discussion, as an earlier mentioning of such a concept would have positively elevated the discussion in favor of litigation. For example, of the author recognized that litigation might appeal to culture beforehand, then this would lead to the conclusion that it is indeed effective in the directing of change. 

Nevertheless, it is critical to recognize that without the acknowledgement of litigation as a formidable part in the rights process, the paper would not have gained relevance. Essentially, focusing on lawyers as a critical part of the discussion makes the paper positively pertinent, as it can inspire further studies on the impacts that litigation has had on social change. For example, in some instances, the legal actions of petitioning teams have challenged the judiciary to make decisions that are might have positive impacts. Ultimately, politics of rights reveals that while political actors and other interests might inspire action, institutionally recognized actors such as lawyers can take up bigger roles. For example, since lawyers are free from most constraints and linked to political groups, they are more likely to represent views, opinions and standpoints with more vigor than the rest. This reality, the connection to particular causes, according to Stuart, plays a role in the myth of rights. 

Mark Tushnet. Taking the Constitution Away from the Courts: Chapter Six and Seven

The article by Tushnet (2000) contains two major complementary chapters, “Assessing Judicial Review” (Chapter 6) and “Against Judicial Review” (Chapter 7), which explores various issue that are at the center of the judicial process. In Chapter 6, the author explores judicial review as a process whereby the legal validities of decisions made in the court. Essentially, using the freedom of speech as an example, the author shows exactly why judicial review is unpredictable, as it is a way through which minority voices are protected for future sustainability in rights and justice. Consequently, in Chapter 7, the author presents various arguments on the outcomes where there would be a lack of judicial review. Thus, ultimately, the article explores the major issue that is judicial review, by showing exactly why it is important and showing why its absence would bode dome for the society.

In assessment of judicial reviews, the major arguments made by the author are that for the society to achieve full appreciation of their world; there is a need to recognize the role of the court in defining legal/constitutional rights effectively. Essentially, what is just (the final ruling of the Supreme Court), is entirely dependent on the interpretations of rules by the justices and the precedents they choose to introduce. This fact, however, as the author notes, is also affected by other factors such as election results, as supreme courts tend to rule in favor of politics and the returns of elections rather than the principles of the constitution. 

In the latter chapter, “Against Judicial Review,” the author takes his readers on the extreme outcome by asking the question; what would happen without judicial review? The major argument in this question, therefore, is that without judicial review, the public would remain in the dark on the major values of the constitution. For instance, without judicial review, then deciding which rights have been violated and those that have not been recognized will almost be impossible since courts are technically educators of the public and legislators on issues of the law. The author surmises that only when we understood the constitution effectively, through simple and easily relatable terms, would we be able to appreciate the role it played. 

Thus, through the article, the author explores two issues that hold critical importance in the society, and it is critical to note that the major objectives set are gradually accomplished. For instance, the article effectively proves that judicial review, in its basic meaning, forms part of the society’s major processes in the integration of the law into cases and rulings hence ensuring legality. Similarly, the paper manages to paint the picture that when such constraints are missing, there would also be major impediments to the outcomes of legal processes. Another positive outcome from the paper is that it identifies other factors, such as politics and current presidency can play a role in affecting judicial review. For instance, the example that the sitting President can propose a Supreme Court justice who favors their viewpoints ultimately determines the major outcomes in significant cases of nations importance. The consideration of various scenarios and the use of formidable examples makes the paper concise and consistent in its delivery. 

The article is ultimately relevant, as its discussions of judicial review gives the reader an oversight of major realities of the justice system. For instance, it brings to forth the role of the judicial review in directing both political, public and legislature interpretation of the constitution and consequently, this impacts the major conclusions made. The author’s recommendation that there is a need to empower the courts with the ability to reform statutes is critical and this enforces the reader’s appreciation of the constitutional review. 

Charles Epp. The Rights revolution

In the article, Epp (1998) discusses the basis of the rights revolution in the court system, one that he accords special credit to the rising pressure that demanded for change from the judicial system. the author particularly uses examples from the 1960’s to show that while activist judges were not a reality, the increasing pressure from right activist demanded action from the justice system. Additionally, since the justices were independent from control by other organs, and more aware of arising issues, they could finally make critical changes to the constitution. Thus, the major theoretical issue explored in the article is constitutional democracy, as seen through the approaches adopted by the judiciary in enhancing individual rights and liberties. 

The central arguments by the author, therefore, emerge to be those that legal mobilization was one of the most influential factors that made the implementation of rights in the judiciary policy realizable. The author particularly uses the examples of various activist causes such as the American Civil Liberties Union (ACLU) among others, which through their engagement with individuals seeking rights in the court systems were able to effect significant change. For example, whereas individuals could not pursue the costly legal processes, such activist groups empowered them to mount fights for legal justice that the Supreme Court was eager to grant. Thus, the author shows that the rights revolution was indeed a development process that expanded the meanings, attitudes and implementations of contemporary civil rights and liberties. Another major argument is that the culture of the society plays a critical role in motivating the rights revolution, since the justices are also part of the cultures they reside in. An alternative viewpoint is that the judge can also personally choose to focus on a right that is of persona interest to themselves. These motivators, essentially, are the major instigators of the right revolution. 

A major strength in the article is that while the article presents a commentary on an issue of importance to the civil rights movement, the revolution in the justice system, he relies on data from various sources that enable him to reach reliable conclusions. For example, by examining the major cases heard by high courts from 1960-1990 across several countries through triangulation and triple checking, as well as the reliance of secondary and primary data, the study could not be more coherent. Ultimately, I agree that the analysis and the latter findings are more elaborate and reliable, as it is easy to trace the paths that the author followed in reaching his conclusion. Another strength is that the article effectively cites various examples, those of court cases in the past, such as Monroe vs Pape and essentially uses them as anchors to direct his arguments. These examples help to legitimize his hypothesis that indeed, individual rights are of critical importance to the judicial process whose involvement can have significant impacts. 

The proposals made by the author are ultimately viable, as they hope to prove that indeed, there are great motivators for the achievement of equality through the rights revolution in the justice system. Through the constitutional, cultural and legal motivators, the occurrence of the rights revolution was a potential goal that ultimately changed definition of individual liberties and freedoms. The article, therefore, contributes to current studies on the role that the justice system can play in the achievement of social change and particularly in the positive promotion of rights.  

Michael W. McCann. Rights at Work.

In the article, McCann explores two major issues through two chapters, “Pay Equity Reforms” and the “Politics of Legal Mobilization.” Through the chapters, McCann (1994) traces the theoretical aspects of wage equity and legal mobilization that the author wishes to demonstrate in action, especially in how it affects the rights of workers and wage earners today. Gradually, the paper morphs into a discussion that through legal mobilization, the law is transformed into an assertion of rights where ultimately, the law is seen as the best way to achieve practicality in the interaction with citizens. However, the author relies on a multi-dimensional approach to reach these conclusions, as he adopts various case studies, personal interviews and surveys with the hope that they can inform his conclusions. 

Through the chapters, the author makes several arguments that should be considered for their respective impacts and significance. Firstly, the author proposes that where wage justice is concerned, courts have not been the most favorable grounds for change, as their action has not been significantly constructive. The author notes that action in the court is more or less a momentary illusion that does little to empower ordinary citizens, especially those marginalized by pay inequities. Another argument is that legal mobilization can be used to gain considerable attention to an issue or event by employing legal tactics for dealing with political and social struggles. The author also promotes the idea that the law is a cultural matter, as it is also directly related and connected to legal discourses and practices. Additionally, the argument that legal conventions are context-specific is significant, as it suggests that the law is partial depending on the respective approach adopted by lawmakers. This argument has significance for social issues, as it suggests that the law might support either side in a case, as the interpretations vary and are not definite for every case. 

The article is largely successful, as it achieves its major objectives by presenting the major factors at play where litigation is involved. The author effectively discusses that legal practices and respective tactics are not necessarily constructive for social reform, as they are dependent on many other factors such as current legal frameworks and popular interpretations. The law essentially, is a double-edged sword, since sometimes, the same law can encourage balance and peace and in other instance, it can create strife and unrest in the society. 

I believe that the study is viable, as it pays critical attention to the role that litigation pays to the achievement of pay equity. The major outcome of the study thus becomes an upsetting of popular assumptions that the courts or the litigation process can help achieve significant change in the society. Alternatively, the paper argues that despite the short-term victories enjoyed at court, there are no significant outcomes from the actions of litigators in the court if equity is to be achieved. 

Conclusion

Conclusively, I believe that the article is most relevant to the arguments in the course, as it brings about scholarly attention to the politics of right advocacy in the context of our modern society. For instance, the study, while reviewing how legal frameworks have impacts in the society, it also manages to provide a commentary on similar studies, that he suggests should never take a side on the most formidable approaches. Ultimately, the study is constructive to the appreciation of ways through which the legal struggle can be used to enforce democratic liberties today. 

References

Epp, C. R. (1998). The rights revolution: Lawyers, activists, and supreme courts in comparative perspective. University of Chicago Press.

McCann, M. W. (1994). Rights at work: Pay equity reform and the politics of legal mobilization. University of Chicago Press.

Rosenberg, G. N. (2008). The hollow hope: Can courts bring about social change? University of Chicago Press.

Scheingold, S. A. (2010). The politics of rights: Lawyers, public policy, and political change. University of Michigan Press.

Tushnet, M. (2000). Taking the constitution away from the courts. Princeton University Press.