Rosenberg’s Methodology

1. Rosenberg’s Methodology • Topic: “My aim is to understand to what extent [courts] helped and can help produce liberal change.” xi • Research Question: “Can courts produce significant social reform?” [and carefully defines all the terms] • Literature Search: There appear to be two competing views: dynamic court, constrained court. He investigates each view carefully and concludes that they are mutually exclusive, so one of them has to be wrong.

2. Rosenberg’s Methodology • Hypothesis: He states a clear hypothesis that is capable of being tested with empirical evidence and capable of being refuted. • Hypothesis Testing: He examines carefully all the evidence relevant to his hypothesis. [Note: this is not the same as providing evidence consistent to his hypothesis. The fundamental difference between science and propaganda is to be found in this distinction.]

3. Rosenberg’s Hypothesis • The conditions enabling courts to produce significant social reform will seldom be present because courts are limited by three separate constraints built into the structure of the American political system. • The limited nature of constitutional rights; • The lack of judicial independence; • The judiciary's lack of powers of implementation.

4. Rosenberg’s Hypothesis (continued) However, when certain conditions are met, courts can be effective producers of significant social reform. These conditions occur when EACH of the three constraints are overcome.

5. Constraint I “The limited nature of constitutional rights” This constraint can be overcome if “there is ample legal precedent for change.”

6. Constraint II “The lack of judicial independence” This constraint can be overcome if “there is support for change from substantial numbers in Congress and from the executive.”

7. Constraint III • “The judiciary's lack of powers of implementation” • This constraint can be overcome if “there is either support from some citizens, or at least low levels of opposition from all citizens,” AND, at least one of the following four conditions are met: • Positive incentives are offered to induce compliance. • Costs are imposed to induce compliance. • Court decisions allow for market implementation. • Administrators and officials crucial for implementation are willing to act and see court orders as a tool for leveraging additional resources or for hiding behind.

8. What about Roe v. Wade?

9. Constraint I “The limited nature of constitutional rights” This constraint can be overcome if “there is ample legal precedent for change.”

10. Roe v. Wade:Overcoming Constraint I • The Limited Nature of Constitutional Rights: overcome by well established line of cases on marital and procreative privacy--cases already used to strike down abortion laws in lower and state courts

11. Constraint II “The lack of judicial independence” This constraint can be overcome if “there is support for change from substantial numbers in Congress and from the executive.”

12. Roe v. Wade:Overcoming Constraint II • Lack of Judicial Independence: overcome by widespread elite support and little popular opposition to reform of abortion laws prior to Roe. • After Roe there was significant new opposition from elites • 68 constitutional amendments proposed in Congress • a variety of anti-abortion riders • the Hyde Amendment • states rewrote laws hostile to abortion • proliferation of right to life groups • Aggregate public opinion did not shift that much

13. Constraint III • “The judiciary's lack of powers of implementation” • This constraint can be overcome if “there is either support from some citizens, or at least low levels of opposition from all citizens,” AND, at least one of the following four conditions are met: • Positive incentives are offered to induce compliance. • Costs are imposed to induce compliance. • Court decisions allow for market implementation. • Administrators and officials crucial for implementation are willing to act and see court orders as a tool for leveraging additional resources or for hiding behind.

14. Roe v. Wade: Overcoming Constraint III • Lack of Enforcement Powers: overcome by support from some citizens AND • (Condition 2) the accident that the court’s decisions allowed for market implementation

15. Rosenberg’s Conclusion • Courts can almost never produce significant social reform. Problems unsolvable in the political context can rarely be solved by the courts. Litigation drains energy that could be better spent on political efforts. • Reliance on court substantially weakened pro-choice forces. They failed to organize politically (“we won”). They helped to pass the Hyde Amendment assuming the court would overturn it. Symbolic victories are mistaken for substantive ones.