Summary and Keywords
Scholars have long been interested in judicial impact—the ability of courts to meaningfully alter policy or politics—because judicial decisions shape law, have the potential to affect many people, and may even implicate democracy in a fundamental sense. Classic studies in this tradition concern the degree to which actors outside the court comply with judicial decrees, such as whether or not (or to what extent) schools desegregated in the wake of Brown v. Board of Education. However, scholars working in a variety of other traditions have likewise examined the impact of judicial decisions, though they have not always used those terms. For example, advocates of interbranch analysis have situated courts within broader ongoing policy processes, and in so doing have documented repeated instances in which policy outcomes were altered by the actions of lawyers and judges. Likewise, students of legal mobilization have documented the sometimes constitutive effects of legal ideas on a wide range of political identities, attitudes, and behaviors. In short, the concept of impact includes a variety of ways in which courts influence politics, and the field of judicial impact studies will continue to benefit from a vital diversity of methods of inquiry, subjects of analysis, and conceptions of law.
The scholarly tradition of judicial impact research dates at least to 1957, when Gordon Patric published “The Impact of a Supreme Court Decision: Aftermath of the McCollum Case.” Since that time, a wide range of valuable studies have illuminated the multifarious ways in which judicial decisions influence law, policy, and politics. In an early edited volume dedicated to assessing the impact of US Supreme Court decisions, Theodore Becker argued that impact studies were a promising way forward in the Public Law subfield because they would serve to merge the “study of the Court into the study of politics” more generally (1969, p. 4). On Becker’s account, this integration would occur because “those interested in the impact of the Supreme Court decision are concerned about political and social change,” because impact studies were relevant to real world events, such as the effect of Miranda v. Arizona (1966) on violent crime, and because recent years had witnessed a number of successful congressional reversals of significant Court decisions (1969, pp. 4–6). In sum, Becker noted that judicial impact matters because the Court’s decisions sometimes alter the state of law that governs social and political behavior and/or induce responses from other political actors, thereby affecting policy and political outcomes.
Scholarly interest in the Court’s ability to affect political and social change has remained strong. Some scholars have followed Patric and Becker in framing their studies explicitly as investigations of “judicial impact,” particularly with regards to identifying and understanding patterns of noncompliance with the US Supreme Court’s decisions. Other scholars have investigated related phenomena, but under alternative scholarly frames. Advocates of both “interbranch analysis” and “coordinate construction,” for example, have joined judicial impact scholars in addressing the effects of judicial politics on the other branches of government and on the ultimate outputs of the policymaking process. And a wide variety of socio-legal scholars have explored how law, legal institutions, and legal norms inform and even constitute individual and group identities, interests, and behaviors. These literatures have generally developed independently from one another, but we argue that a full understanding of judicial impact requires attention to all of these dimensions.
What Is Judicial Impact and Why Do We Study It?
Following up on Patric’s initial account, Arthur Miller issued a call for systematic research on judicial impact in 1965. Pointing to Justice Benjamin Cardozo’s claim that at least “some of the errors of courts have their origin in imperfect knowledge of the economic and social consequences of a decision,” Miller argued that judicial impact studies could “provide a flow of informed commentary which will serve the purpose of constructive criticism of the Court and its work, and thus assist in keeping the Justices within proper bounds” (Miller, reprinted in Becker, 1969, pp. 11, 13). Miller’s call for systematic study of judicial impact has been answered by several generations of social scientists, but his hope that these studies would better inform judges has not always been fulfilled. Some portions of the field have evolved along positivist social science lines, with little attention to the initial normative impetus that drove scholars like Becker and Miller. Other parts of the field have retained this impetus, but, from our vantage, have emphasized just one potential set of normative implications of judicial impact research. For several decades now, a persistent strain in the literature has argued that controversial rights-protecting decisions rarely have their intended policy and political effects and hence should usually be avoided.1 Less common, or at least less systematically developed, have been efforts to inform judges and litigators about how best to craft rights-protecting decisions that might avoid this fate.
Becker’s (1969) edited volume, together with a follow-up edition co-edited with Malcolm Feeley four years later, included a total of twenty-three separate studies addressing a range of forms and types of impact at various locales and from numerous perspectives. Of these studies, four concern Court impact on Congress and/or the presidency, two focus on impact on lower federal courts, eleven explore impact on state and local government actors, two look at Court impact on public opinion, and the rest are more broadly theoretical. In the editors’ introduction to the theory section of the 1973 edition, Becker and Feeley distinguish three competing concepts that might form the core of a theory of Supreme Court power. The first is “aftermath,” a broad concept encompassing everything both directly and indirectly affected by a Court decision; this they dismiss as too broad to be theoretically useful. The second is “compliance,” a much narrower concept which captures the extent to which implicated actors “knowingly obey or do not obey specified rules” (1973, p. 212). This concept they dismiss as too narrow, as it misses a range of interesting and important phenomena, such as congressional attempts to thwart Court decisions. They settle on a third concept—“impact”—which they define as “all policy-related consequences of a decision” (1973, p. 213). On Becker and Feeley’s account, impact is a Goldilocks concept: narrow enough to be theoretically useful, but broad enough to capture (and thus, hopefully explain) a wide range of outcomes that are more-or-less directly caused by Supreme Court decisions.
Becker and Feeley (1973) echoed Steve Wasby (1970) in noting that because the findings of many of the then-extant studies of judicial impact were impressionistic, tentative, and based on limited data, no general theory of impact was yet possible. Judicial impact studies have proliferated since the 1970s, but there remains much we do not know, and a general theory of impact still eludes us. As such, the task of judicial impact scholars today is the same as it was in 1973: to account for the full range of impacts that judicial decisions have on politics and policy, preferably in ways that would better inform the litigators and judges who will be calling for and crafting future such decisions.
Compliance and Implementation Studies
Though Becker and Feeley argued that the concept of compliance was an overly narrow focus for investigations of judicial impact, their early edited volumes collectively included eleven chapters that were effectively compliance studies. Many of these studies were borne out of interest in the “rights revolution,” as scholars wondered whether the Warren Court’s activity was having the impact that liberals hoped. For example, Robert Birkby (1973) measured the impact of Abington School District v. Schempp (1963) by assessing the extent to which schools in Tennessee stopped holding school-sponsored Bible reading, and found that fewer than half (51 of 121) of the districts in his sample altered their policy to comply with the Court’s ruling. Several chapters in both volumes were dedicated to assessing the impact of Miranda v. Arizona, finding that while compliance was imperfect, the decision had substantially reduced the incidence of coercive interrogation tactics and the rate of suspect confessions in some jurisdictions (Seeburger & Wettick, 1973; Wald et al., 1969).
Subsequent works likewise emphasized that even if compliance did not exhaust the concept of judicial impact, it was certainly a key component of it. In a 1984 book, for example, Bradley Canon and Charles Johnson called for the field to distinguish more carefully among compliance, implementation, and impact, which they defined, respectively, as “behavior that is in some way consistent … with the behavioral requirements of the judicial decision”; “the behavior of lower courts, government agencies, or other affected parties as it relates to enforcing a judicial decision”; and “general reactions following a judicial decision” (1984, pp. 14–15). Thirty years later, Diana Kapiszewski and Matthew Taylor reiterated that it is important to distinguish between compliance—“full execution of the action (or complete avoidance of the action) called for (or prohibited) in one or more court rulings”—and the broader concept of impact, which “concerns the effect of court rulings beyond the actions or policy changes that directly result from them” (2013, pp. 806, 807).
One influential early account that emphasized courts’ limited capacity to enforce compliance with their holdings was Donald Horowitz’s (1977) The Courts and Social Policy, which has been cited more than 1,300 times (Google Scholar, consulted April 28, 2016). Drawing on case studies of legal disputes regarding urban renewal, school funding, juvenile justice, and illegal police searches, Horowitz argued that judicial institutions were ill-equipped to successfully craft and implement effective public policy. On Horowitz’s account, this institutional incapacity was rooted in courts’ piecemeal decision-making, often focused on particular and unrepresentative cases; their passive tendency to act only when litigants call issues to their attention, judges’ lack of policy expertise and relative inability to make effective use of social scientific data, and courts’ lack of attention to assessment and evaluation.
Even more influential was Gerald Rosenberg’s (1991) The Hollow Hope: Can Courts Bring About Social Change?, which has been cited more than 3,100 times (Google Scholar, consulted April 28, 2016) and indeed is the single most influential work of scholarship in the judicial impact tradition. Where Horowitz argued that judicial efforts to make policy often resulted in perverse and unintended effects, Rosenberg argued that they were often inconsequential; they did not make things worse, but nor did they achieve their intended goals (Feeley, 1992, p. 750). Like Horowitz, Rosenberg drew on several case studies, but his key finding was that Brown v. Board of Education (1954) was followed by widespread noncompliance, with only 1.2% of African American pupils in the South attending school with whites a full decade after the landmark decision (1991, p. 50). By marshalling such evidence, Rosenberg persuaded many scholars and students that the Court is an ineffective policymaker.
Rosenberg’s book has inspired a range of other scholarly works that have likewise emphasized the limited capacity of courts to enforce compliance with their holdings. For example, Martin Sweet (2010) argues that local officials in Philadelphia, Portland (Oregon), and Miami generally flouted the constitutional limits on race-conscious government contracting policies imposed by the Court in City of Richmond v. J. A. Croson Co. (1989). On Sweet’s account, local elected officials were frequently able to erect social, legal, and political barriers that stymied the enforcement litigation that would have been necessary to render Croson effective. To note another example, the Court has repeatedly held that parental notification or consent requirements for minors seeking abortions are constitutional if and only if they include a “judicial bypass” option by which minors may persuade a judge that obtaining an abortion without parental involvement is in their best interests. But Helena Silverstein (2007) has documented the remarkable extent to which this requirement has been rendered ineffective in practice by judges and other local court officials who are either unaware of or actively opposed to it. Jon Gould (2005) has likewise documented the extent to which colleges and universities have evaded judicially imposed limits on campus hate speech policies.
Other studies have concluded that even when the Court’s decisions are complied with, they sometimes fall short of the transformative effects that their architects had hoped for. The Supreme Court’s reapportionment decisions of the 1960s, for example, led directly to the redrawing of legislative districts in almost every state. These redistricting efforts benefited the Democratic Party and led to some significant changes in policy (Erikson, 1971; Hanson & Crew, 1973), but the reapportionment decisions nonetheless left many liberals disappointed. Martin Landau (1965), for example, predicted that Baker v. Carr (1962) would be the end of American federalism, arguing that the decision would allow the parties to become “urban-national bridges” that would ultimately obviate the states as political entities. Because these decisions came down at a time when cities were shrinking and suburban areas were rapidly growing, however, their primary beneficiaries were suburban rather than urban voters (Lassiter, 2006; Erikson, 1971; Hacker, 1965).
Rosenberg’s work also inspired studies demonstrating that, under certain conditions, courts can effectively enforce compliance with their holdings. Rosenberg himself acknowledged the existence of such conditions (1991, pp. 30–36), but that is not what his book is usually remembered for, and other scholars (both before and after publication of The Hollow Hope) have drawn more attention to the possibility of effective, court-motivated policy change. Ralph Cavanagh and Austin Sarat (1980) found that decisions concerning debtors, tenants, and intimate relationships did in fact substantially alter the state of social practice. For example, by subjecting lender/landlord claims to significant scrutiny even in the absence of affirmative defenses by debtors/tenants, small claims courts considerably improved the fairness of legal proceedings in those tribunals (Cavanagh & Sarat, 1980). Similarly, Michael Rebell and Arthur Block (1982) and Jennifer Hochschild (1984) found that federal court decisions in the field of education reform were generally complied with. In the area of prison reform, Malcolm Feeley and Edward Rubin (1998) argue that courts both formulated and implemented policy that substantially altered the status quo; that is, litigators and judges dramatically improved the conditions in federal prisons. Paul Frymer (2003) argues that legal activism and the “top-down” institutional power of the courts were crucial to the integration of labor unions, an issue on which elected officials generally failed to act.
In an important 2011 book, Matthew Hall sought to assess these dynamics more systematically. Examining patterns of implementation with regard to every landmark exercise of judicial review by the US Supreme Court from 1954 to 2005, Hall concluded that when the Court’s decisions are broadly popular and/or can be implemented by lower courts directly (as opposed to school boards and other public actors), they are generally complied with. With regard to Roe v. Wade (1973), for example, Hall hypothesizes that the Court’s decision would have a significant impact; abortion rights are politically controversial, but since they were regulated at the time primarily via criminal bans on abortion, the Roe decision could be implemented simply by trial judges refusing to convict abortion providers for violating such bans. When Rosenberg (2008, p. 179) investigated Roe’s impact, he found that the incidence of legal abortions had already been on an upward trajectory for several years when the Court stepped in, and that the Court’s decision did not much alter this trajectory. But Hall (2011, p. 41) disaggregates this data by state and finds that states with strict legislative restrictions on abortion—i.e., those where the Roe decision was consequential—witnessed a sudden and dramatic rise in legal abortions in the decision’s wake. (He also finds that the number of women crossing state lines to seek an abortion decreased significantly.) Thomas M. Keck (2014, pp. 214–224) has likewise emphasized that a great many controversial, rights-protecting judicial decisions—even on polarizing issues like abortion, affirmative action, gay rights, and gun rights, and even when they spark widespread opposition—are fully complied with.
In sum, the literature now includes forty years of studies examining the implementation of judicial decisions. From the beginning, the central focus of these studies was noncompliance—the notorious gap between “law on the books” and “law in action”—but throughout, a number of scholars have contended that this focus has been distorting. In a wide range of contexts, under a wide variety of conditions, courts have successfully implemented controversial decisions.
Courts and the Policy Process
When Kapiszewski and Taylor (2013) urged comparative courts scholars to move beyond judicial decision-making to examine judicial impact as well, they called for a tight conceptual focus on compliance in order to facilitate comparability across courts. In the US context, however, many scholars have followed Becker and Feeley in pursuing a broader conception of impact. Rosenberg himself drew a distinction between direct impact (by which he meant compliance) and indirect impact (by which he meant a constellation of potential radiating effects that court decisions might have over time). With regard to Brown v. Board, he asked whether the decision produced increased media attention to civil rights, altered public opinion, spurred congressional action, or helped spark social movement protest; he answered no on all counts (1992, pp. 107–156). All of these findings have been challenged (Garrow, 1994; Klarman, 2004, pp. 364–366; Paris & McMahon, 1998). But the key point is that direct and short-term patterns of compliance do not exhaust the concept of judicial impact. As such, scholars working in at least two distinct traditions have undertaken systematic examinations of broader patterns of judicial influence.
One such tradition is that of interbranch analysis, which emphasizes the ongoing—indeed, never-ending—interaction among judicial, legislative, and executive institutions in the US policy process. As Jeb Barnes puts it, this approach “holds that American politics and policymaking emerge from the continuing interaction among ‘separated institutions sharing power’ [and that] this intricate dispersal of power creates a complex and shifting web of relations among various centers of power.” Rather than “focus[ing] on the behavior of any single actor or on any one point in the process, … the central task is to understand the shifting relationships among these actors across policy areas and over time” (2007, pp. 27–28; see also Barnes & Miller, 2004).
In its current guise, this literature is part of a broader, policy-focused (or Schattschneiderian) turn in American politics scholarship (Hacker & Pierson, 2014), but the interbranch analysis tradition also dates to a number of influential mid-twentieth century works by Jonathan Casper, Walter Murphy, and Martin Shapiro. Casper argued in 1976 that no institution in the famously fragmented US policy process is able to shape policy outcomes by itself, and Murphy’s Congress and the Court was among the first studies to focus explicitly on the reactions of the political branches to Court decisions. After studying the congressional reactions to several of the key cases to come out of the early Warren Court, Murphy argues that despite frequent failures to pass Court-chastening legislation, congressional reactions still goaded the Court into remolding its jurisprudence “so as to render moot much of the criticism against it” (1962, p. 245). Still, Murphy and Shapiro’s careful case studies of congressional interactions with the Warren Court appeared to show a greater degree of judicial influence on policy outcomes than Rosenberg’s account would predict (Murphy, 1962; Shapiro, 1964). Murphy, like Rosenberg, focused on landmark constitutional holdings, but Shapiro called explicitly for a broader lens, urging scholars to dig deep in the weeds of statutory and administrative holdings issued by lower federal courts, and repeatedly emphasizing that even within the realm of constitutional law, social scientific investigations should emphasize the political causes and consequences of decisions issued by a wide variety of courts, not just the interpretive debates conducted inside SCOTUS (Shapiro, 1961, 1962, 1964, 1968, 1993, 2013; see Gillman, 2004).
Working in this vein, Shep Melnick has demonstrated that the modern welfare-regulatory state provides routine opportunities for federal judges to intervene in policy conflicts between federal legislators and administrative agencies, and that a great many of these interventions go unaddressed (or only partly addressed) by Congress. Melnick acknowledges that Congress regularly overrides statutory interpretations issued by federal courts, but emphasizes that enacting such overrides “is seldom easy and … usually takes several years. Those who favor the courts’ interpretation can often block remedial legislation or demand concessions. By altering the policy status quo, the courts inevitably affect the bargaining power of various legislative factions.” As a result, “one would be hard-pressed to find a major domestic policy area in which statutory interpretation by the federal courts did not play a significant role in shaping the activities of government” (1994, pp. 6–7). Drawing on case studies of judicial-legislative interactions with regard to Aid to Families with Dependent Children, food stamps, and educational services for children with disabilities, Melnick makes clear that the fragmented nature of the policy process effectively “insulate[s many] judicially initiated [reforms] from legislative revision” (1994, p. 114; see also Melnick, 1983; Barnes, 2004a).
Adopting a comparative lens, Robert A. Kagan coined the term “adversarial legalism” to characterize the distinctly American style of policymaking via litigation, which he contrasts with a European-style “bureaucratic legalism” that is prevalent in many other advanced Western democracies. Picking up on Kagan’s distinction, a number of scholars have demonstrated that Congress regularly empowers courts via regulatory statutes that rely on litigation as a significant (and sometimes primary) mode of policy enforcement (Burke, 2002; Farhang, 2010; Mulroy, 2012). Barnes and Tom Burke (2015) have pointed out that both adversarial and bureaucratic legalism are present in the US context, with different policy mechanisms having taken root in different policy domains. Drawing on careful case studies of three distinct areas of injury compensation policy—one dominated by tort law (asbestos injury compensation), one dominated by bureaucratic institutions (Social Security disability insurance), and one which shifted from an initial dominance by tort litigation to a subsequent bureaucratic model (vaccine injury compensation)—they argue that many of the supposed weaknesses of litigation as a means of policy-making have been overstated. In their cases, litigation fueled rather than suppressed other forms of political mobilization. Courts did not serve as “flypaper,” drawing advocates away from other, more effective means of political action (as Rosenberg had suggested in The Hollow Hope); their controversial decisions did sometimes provoke political countermobilization, but the same is true of controversial legislative and administrative enactments. Courts also proved more flexible than bureaucratic agencies in responding to new circumstances and demands.
Aaron Ley (2014) likewise argues that the judiciary can effectively produce policy, and that it sometimes does so in ways that have measurable advantages over other institutions. Looking at disputes between farmers who burned their fields and citizens concerned with harms to air quality caused by the burning in three states (Idaho, Oregon, and Washington), Ley argues that litigation enhanced public input on the relevant policy questions and delivered policy outcomes that were qualitatively better than the outcomes of administrative or legislative politics. Additionally, he points out that litigation is not necessarily more costly or slower than other modes of political contestation.
Most of this literature has focused on state and federal appellate courts, but some scholars have extended a similar lens to decisions issued by trial courts. In an important article, Lynn Mather reviews the impact of Cipollone v. Liggett Group (1984), in which a federal trial court issued the first ever US civil judgment against a tobacco company regarding the harmful effects of smoking. The Cipollone holding was overturned on appeal, but it nonetheless “contributed to a new way of thinking about the legal responsibility of cigarette manufacturers” (Mather, 1995, p. 172). Echoing Shapiro, Mather contends that trial courts engage in significant policymaking through the day-to-day power they exercise over small decisions, rather than the ability to dramatically alter the course of government through any single decision. Indeed, due to a spate of litigation following Cipollone, tobacco companies offered in 1997 to pay more than $365 billion to compensate for the costs of illnesses related to smoking and to finance anti-smoking campaigns, in exchange for limits on litigation against them (Mather, 1998). On Mather’s account, trial courts were critical players in the major changes in tobacco policy in the mid-to-late 1990s, though not much of this role would be visible through a narrow lens focused on compliance (see also Silverstein, 2009, pp. 245–265).
One lesson of this literature is that endemic patterns of litigation, across time, regularly reshape policy outcomes, though neither judges nor anyone else regularly have the final word (Keck, 2014). As a result, the traditional case-centric approach to the study of impact can yield only partial understandings of Supreme Court power (Hall, 2015). Hall proposes instead a “macro-level” approach that is attuned to long-term changes in policy outcomes that (might) take place as a body of legal doctrine develops. Such an approach has the potential to better capture both short- and long-term effects and to account for the possibility that the Court’s influence may come not just from its actual rulings but also from strategic anticipation by lower courts, litigators, and other key actors (Hall, 2015, p. 86). Utilizing such a macro-level approach, Hall has demonstrated that aggregate shifts in decision-making by both federal and state courts have significantly affected incarceration rates (Hall, 2015; Hall & Windett, 2015).
Robert Howard and Amy Steigerwalt (2012) reached similar conclusions after examining the effects of federal and state courts on public policy in the areas of taxation, environmental protection, gender equality, abortion, same sex marriage, affirmative action, and school finance reform. They argue that “courts can have a huge impact and … [that] other political actors have little choice but to accept the courts’ rulings” when the judicial decisions fall within the “legal set”—that is, within the “domain of policy choices left to courts … by other political actors in the American political system” (2012, p. 178). Echoing Robert McCloskey (1960), Howard and Steigerwalt note that courts run the risk of being overturned by the “political” branches of government when they stray too far from the political mainstream—that is, when they move beyond the “legal set.” Richard Pacelle (2015) largely agrees, noting that the Court today is an active policymaker, and in fact leads policymaking in the areas of individual liberty and civil rights. Even so, Pacelle emphasizes that the Court exists in a political environment that provides a number of meaningful checks on its power, including Congress, the president, the bureaucracy, public opinion, and even “the law,” which generally serve to keep constitutional practice well within the realm of the politically acceptable.
Matt Grossmann and Brendon Swedlow (2015) have also sought to measure impact on the policy process without using the judicial decision as the unit of analysis. To do so, they relied on an extensive review of published policy history case studies in fourteen issue areas to identify significant policy changes (see Grossmann, 2013). They then coded for whether each policy change was the result of an act of Congress, the executive, an administrative agency, or a court; that is, they relied on the judgments of experts in each policy area to determine which entity (entities) was (were) responsible for each policy change. As a further measure of judicial influence, Grossmann and Swedlow (2015) coded for mentions of court rulings that required or influenced actions of other branches, fear of court intervention, or patterns of related lawsuits or threats to sue. Using this innovative method, they found that federal courts directly made policy in 15.8% (125 instances) of the significant policy changes that occurred between 1945 and 2004 and indirectly influenced policy outcomes in another 7.5% (59 instances). Because their data allow for cross-institutional comparisons, Grossmann and Swedlow were able to establish that judicial policymaking occurs about as often as executive policymaking (though both lag far behind Congress), and that courts indirectly influence policy about as often as Congress (though considerably less than the executive). Unsurprisingly, however, they found that judicial influence varied significantly across issue areas, with courts playing a larger role in the areas of civil rights and liberties and criminal justice than in the areas of agriculture and housing and urban development.
In a related vein of research, scholars have sought to understand the role of courts—especially the Supreme Court—in fostering debates over constitutional meaning outside the judiciary. J. Mitchell Pickerill (2004, p. 11) sought to explain the likely impact of the Court’s exercise of judicial review on constitutional deliberation in Congress. After examining all federal legislation struck down on constitutional grounds between 1953 and 1997, Pickerill concluded that Congress usually formally responds to such decisions, often by reenacting the statute in modified form. Similarly, Bethany Blackstone (2013) argues that Congress frequently responds to perceived unfavorable constitutional decisions by altering policy with regular legislation. In other words, one impact of the exercise of judicial review is to put items on Congress’ agenda. On this account, judicial review serves less as a roadblock than a speed bump or detour with respect to congressional action. This role is rooted in the fact that “Courts are the ultimate interpreter of a particular case, not the larger issue of which that case is part” (Fisher, 1988, p. 245). Further, Pickerill finds that the mere threat of judicial review can spur Congress to deliberate on the constitutionality of bills under consideration and that the ultimate product of those congressional deliberations is legislation that balances the preferences of the two institutions. In short, Pickerill argues that the Supreme Court impacts Congress both by spurring action and by influencing the substance of subsequent legislation.
James Meernik and Joseph Ignagni (1997) argue that Congress occasionally seeks to impart its interpretation of the Constitution onto the Court by assertively responding to exercises of judicial review. They argue that Congress specifically seeks to constrain the Court when “there is evidence of public opposition” to the Court’s decision, when the ruling involves a state law, and when the ruling involves the separation of powers or federalism—that is, cases in which Congress likely has something to gain by confronting the Court (see also Ignagni & Meernik, 1994). Meernik and Ignagni conclude, however, that while Congress attempts to override fully one-third of the Court’s invalidations of statutes, it succeeds in overturning just 7.2% of them (see also Pickerill, 2004; Blackstone, 2013).
Law’s Constitutive Effects on Politics
As the mainstream of impact studies developed, it became increasingly positivist in its assumptions, methods, and measures. A large group of scholars reacted critically to this turn, arguing that positivist-oriented impact studies mask much important work that courts and the law do. In 1985, for example, Austin Sarat argued that “gap studies” tend to focus on unusual cases, which happen also to be those in which law is least likely to be effective in shaping outcomes. As such, “gap studies distract us from the normal and, in doing so, prevent us from painting an accurate picture of the way law works to control society” (Sarat, 1985, p. 29; see also Cavanagh & Sarat, 1980). A number of socio-legal scholars advanced similar concerns about the conception of impact in gap studies in the late 1980s. John Brigham (1987a, p. 205) argued that “compliance is a very small part of the policy consequences” of judicial decisions and complained that conventional impact studies have “the conceptual richness of a toggle switch, either on or off.” Brigham and Christine Harrington (1989) argued that the problems of the impact literature are rooted in its intellectual foundations in realism (or neo-realism), which discounts ideas in favor of action. Rather than a single-minded realist focus on policy outcomes, they called for examination of law’s constitutive role in shaping social relations (see also Abel, 1980). Brigham argued that law is typically understood as “rules made by government” which in turn means that institutions and officers of the state determine what is “legal” (1987b, p. 303). Thus, he argued, those who study impact from this perspective miss entire categories of insight into the social reality of law.
In short, socio-legal scholars have relied on an ontology of law that substantially departs from that of most scholars working in the traditional vein of impact and compliance—and the ontological differences between those conducting compliance/gap studies and those doing socio-legal work suggest divergent epistemologies (e.g., McCann & March, 1996). As these two veins of literature developed, they became increasingly self-referential, recognizing that the other just saw law differently.
In his classic work, The Politics of Rights, Stuart Scheingold expressed deep skepticism about the efficacy of courts in the pursuit of progressive social change, but he pointed out that law and litigation can have several ancillary effects. Notable among these possible effects is that “law” and “rights” might provide normative or rhetorical resources for activist movements. Such rights may, for example, “activate the quiescent” by encouraging them to view their grievance as one with a political remedy. Thus, though rights are a “myth,” rights consciousness remains an important component of politics. Building on Scheingold, Frances Zemans (1983) initiated an important line of study in this area, arguing that “legal mobilization” should have a central role in political science’s understanding of law. She argued that too many scholars view law as unidirectional—imposed by the state upon citizens—but in reality, the law provides a quintessentially democratic interface for citizens and the state. In short, by mobilizing the law and invoking legal norms, litigation provides citizens with an opportunity to make demands of the state based on rights claims, and in this way participate directly in governance. Similarly, Mather argues that the “very process of litigation operates to define problems, identities, and relationships; to shape formal law according to local beliefs and conditions; and to create new legal norms” (1995, p. 192).
In one study in this vein, Kristin Bumiller (1992) argues that litigation for group rights requires plaintiffs to adopt the “image of the victim” and thus lose their individuality and instead assume a class or group identity; that is, individual victims come to represent “women” or “Latinos,” and so forth (see also Engel, 2001). As a result, law has a particular, and often negative, impact on disadvantaged individuals, which is quite real, though difficult to quantify. Anna-Maria Marshall (2005) has argued that the imperfect implementation of sexual harassment policies in the workplace—that is, the gap between formal legal policy and the reality of everyday practice—shaped women’s responses to their own experiences with unwanted sexual attention in profound ways. Similarly, looking at movement activists in the areas of alternative dispute resolution, gay rights, and feminism, Brigham argues that “rules made by government infuse and inform the movements themselves by becoming an essential part of their thought, their identity, and their social boundaries” (1987b, p. 304). Moreover, a number of studies have demonstrated not only that law and legality can influence ideas and identities (and thus, politics), but that cultural memes and other mass beliefs about law can do so as well, even when those memes and beliefs lack strong factual foundations (Engel & Munger, 2003; Ewick & Silbey, 1998; Haltom & McCann, 2004; Malhotra, 2015; Wilson &Ackerman, 2012).
Like Brigham, Harrington, and Bumiller, Michael McCann argues that by emphasizing the “large gap between the promise and achievement of court victories,” behaviorist, compliance-oriented studies have adopted overly narrow understandings of causality and impact (McCann, 1994, p. 290). On McCann’s account, the standard measure of impact in conventional “impact studies” misses much about the ways in which “judicial actions shape the strategic landscape” by prefiguring social relations and bounding the range of realistic actions open to individuals (1994, p. 291; see also Lovell, McCann, &Taylor, 2015). McCann documents some of these post-positivist forms of impact in his study of the movement for pay equity reform. He argues that legal challenges in state courts served most importantly to raise consciousness and offer a course for action, and were cited as highly important by movement activists in both these regards despite the failure of any of these cases to win past the trial-court level (McCann, 1994, pp. 74–77). The “impact” of these activities, for McCann, is found not in some official’s compliance with a court holding, but rather in “consciousness raising” and movement building; in law’s function as “catalyst” (the ways that law or legal decisions spurred social movement activism); and in law’s function as a “club” (i.e., a tool that can sometimes “compel concessions from unsupportive” officials, politicians, and elites) (1994, pp. 137–139). In sum, McCann argues that law, legality, and courts can impact social and political practice in a number of ways, both direct and indirect, that are missed by conventional “gap studies.” In an illuminating study of free speech litigation by anti-abortion advocates, Joshua Wilson similarly observed that “[w]e know how the actors in these disputes have behaved, but in order to fully understand the nature of legal power, we need to explore how they understand their behavior and construct law in their stories” (2013, p. 113).
Not all studies in this vein focus exclusively on the constitutive aspects of law, however. Jon Gould and Scott Barclay have argued that socio-legal scholars should not abandon gap studies altogether because such studies “chronicl[e] the multiple ways that law is implemented in disharmony with its presumed aims” and thereby provide the field with “a richer, and many would say more accurate understanding of how law works” (2012, p. 324). In doing so, and for all their imperfections, gap studies have revealed the extent to which noncompliance is an inherent feature of law and legality. Along similar lines, Brigham (1987b, 1996) has called for greater attention to how law provides the institutional stage on which disputes play out, and a number of works have implicitly answered this call. Silverstein’s (1996) study of the animal liberation movement built on McCann’s work in developing a theory of the intercausal relations between law’s constitutive and instrumental dimensions. Charles Epp has substantially advanced this instrumental side of socio-legal impact studies. In his classic comparative study of legal mobilization, Epp demonstrates that “support structures”—i.e., rights-advocacy organizations and lawyers, and stable funding sources for their efforts—are necessary conditions for the judicial protection of rights (1998; cf. Wilson, 2009). In this way, Epp demonstrates that there is a crucial “bottom up” story to be told with respect to the “Rights Revolution.” In a later study, Epp (2010) argues that the rights revolution of the 1960s gave way to a modern system of bureaucratic legalism that he terms “legalized accountability.” On this account, rights-protective judicial decisions, as well as the growth of “rights consciousness” over the last several decades, produced a system of governance which holds government officials responsible for injuries caused by their actions and empowers activist critics. In short, Epp has argued consistently that law’s constitutive effects have important and far-reaching real-world impacts. Keck (2014; see also Price & Keck, 2015), Ellen Ann Andersen (2005), Michael Paris (2010), and Douglas Reed (2001) have likewise conducted studies rooted (at least in part) in legal mobilization frameworks, but that document litigation’s concrete policy effects.
Whither the Field?
The differences among these diverse strains of literature are rooted partly in broader methodological and epistemological divides in the social sciences writ large, with large-N positivist studies, ethnographic interpretive studies, and a range of other modes of analysis in between. They are also rooted partly in jurisprudential differences, with judicial impact and legal mobilization scholars relying on fundamentally different conceptions of law. Taken together, these bodies of scholarship have advanced our understanding of the significance of law and courts in multiple overlapping respects. Some scholars have documented persistent patterns of noncompliance with controversial judicial holdings. Others have documented persistent patterns of compliance, under certain conditions, with such holdings, while still others have moved beyond the compliance/implementation paradigm to address a range of judicial-legislative-administrative interactions that regularly shape outcomes in the US policy process. Working in the tradition of interbranch analysis, Shapiro, Melnick, and Barnes have moved significantly beyond a conventional focus on landmark constitutional decisions issued by the US Supreme Court, exploring instead a wide range of policy areas in which a wide range of courts have weighed in with a wide range of constitutional, statutory, and administrative holdings. In doing so, they have often shifted vantage from judges (who are presumably hoping to achieve full implementation of their holdings) to other policy-makers (who are presumably hoping that judges will further rather than undermine their desired policies). Working in the legal mobilization tradition, socio-legal scholars including Brigham, Sarat, Mather, and McCann have joined their interbranch-analysis colleagues in moving well beyond a focus on high courts and constitutional law and have often shifted vantage still further, from judges and other formal policymakers to nonstate activists and advocates.
As Scott Cummings (2013) notes, a major difficulty attending the study of “impact” is that it can be found in many places; depending in part on where one looks, how one looks, and what questions one asks, impact might occur in doctrine, social practice, community consciousness, or political power, to name only a few. As such, the field will continue to benefit from a vital diversity of methods of inquiry, subjects of analysis, and conceptions of law, even if such diversity frustrates any hopes for scholarly consensus on how law matters.
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