E-Book Content
The Hollow Hope
American Politics and Political Economy Series
Edited by
BENJAMIN
I.
PAGE
Gerald N. Rosenberg
The Hollow Hope Can Courts Bring About Social Change?
The University of Chicago Chicago and London
The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 1991 by The University of Chicago All rights reserved. Published 1991 Paperback edition 1993 Printed in the United States of America 09 08 07 06 05 04 03 02 01 00
56789
Library of Congress Cataloging-in-Publication Data Rosenberg, Gerald N. The hollow hope: can courts bring about social change? / Gerald N. Rosenberg. p. cm.-(American politics and political economy) Includes bibliographical references and index. ISBN 0-226-72703-3 (pbk.) 1. Courts-United States. 2. Political questions and judicial power-United States. 3. Sociological jurisprudence. 4. Civil rights-United Sates. 5. Women's rights-United States. 6. Social change. 1. Title. II. Series. KF8700.R66 1991 340'.115-dc20 90-22391
@)The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.
For My Parents, Milton H. and Beatrice N. Rosenberg and To the Memory of
J. David Greenstone
Contents
List of Tables and Figures Preface xi Introduction
ix
1. The Dynamic and the Constrained Court
9
Part 1 · Civil Rights Introduction 39 2. Bound for Glory? Brown and the Civil Rights Revolution 42 3. Constraints, Conditions, and the Courts 72 4. Planting the Seeds of Progress? 107 5. The Current of History 157
Part 2 · Abortion and Women's Rights Introduction 173 6. Transforming Women's Lives? The Courts 175 and Abortion 7. Liberating Women? The Courts and Women's Rights 202 8. The Court as Catalyst? 228 9. The Tide of History 247
Part 3 · The Environment, Reapportionment, and Criminal Law Introduction 269 10. Cleaning House? The Courts, the Environment, and Reapportionment 271 vii
viii
Contents
11. Judicial Revolution? Litigation to Reform the Criminal Law 304 12. Conclusion: The Fly-Paper Court 336 Appendices 1. Black Children in Elementary and Secondary School 345 with Whites: 1954-72 2. Blacks at Predominantly White Public Colleges and Universities 348 3. Black Voter Registration in the Southern States: Pre- and Post-Voting Rights Act 349 4. Laws and Actions Designed to Preserve Segregation 350 5. Method for Obtaining Information for Table 4.1 and Figure 4.1 352 6. Illegal Abortions 353 7. Method for Obtaining Information for Tables 8. 1A, 8.1 B, 8.2A, and 8.2B, and for Figures 8.1 and 8.2 356 Case References 359 References 367 Index 415
Tables and Figures
Tables 2.1. Black Children in Elementary and Secondary School with Whites, 1954-72 50 2.2. Desegregated School Districts, by Primary Source of Intervention, and by Year of Greatest Desegregation, 1901-74 53 2.3A. Blacks at Southern, Predominantly White Public Colleges and Universities, 1963, 1965, 1966 56 2. 3B. Percentage of Black Enrollment at Southern, Formerly All-White Public Colleges and Universities, by State, 1970 and 1978 56 2.4. Black Voter Registration in the Southern States, 1940-70 61 3. 1. Federal Funds for Public Elementary and Secondary Schools in 17 Southern and Border States, 1963-72 98 3.2. Percentage of Public School Budgets Received from Federal Funds in Southern and Border States, 1963 - 71, and Percentage of Blacks in School with Whites, 1964-65 and 1972-73 99 3.3. Selected Southern School Districts by Extent of Desegregation and Amount of Federal Funds Received, 1967- 70 100 4.1. Magazine and Press Coverage of Civil Rights, 1940-65 114 4.2. Civil Rights Demonstrati