Transcript Rosenberg on Roe ppt

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.
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.]
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.
1. The limited nature of constitutional rights;
2. The lack of judicial independence;
3. The judiciary's lack of powers of implementation.
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.
Constraint I
“The limited nature of constitutional rights”
This constraint can be overcome if “there is ample legal
precedent for change.”
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.”
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:
1. Positive incentives are offered to induce compliance.
2. Costs are imposed to induce compliance.
3. Court decisions allow for market implementation.
4. 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.
What about Roe v. Wade?
Constraint I
“The limited nature of constitutional rights”
This constraint can be overcome if “there is ample legal
precedent for change.”
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
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.”
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
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:
1. Positive incentives are offered to induce compliance.
2. Costs are imposed to induce compliance.
3. Court decisions allow for market implementation.
4. 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.
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
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.