Courts and Social Policy
Summary and Keywords
How do courts affect social policy? Answering this question is deceptively complex. Part of the challenge stems from the sheer scope of contemporary judicial policymaking, particularly in the United States, where litigation reaches into nearly every nook and cranny of the American welfare state and casts a shadow on policy issues ranging from marriage equality to healthcare reform. Another obstacle is that scholars remain deeply divided on fundamental questions about the nature of judicial decisions and how their policy effects should be studied. These disagreements, in turn, have engendered three very different approaches to studying the role of courts in social policy that often talk past each other. The dominant approach views judicial decisions as prescriptive rules—legal commands from the bench—and asks to what extent do judicial decisions change policy? This view implies that judicial decisions are “treatments” whose efficacy should be tested by measuring shifts in policy outcomes from the pre- to post-treatment period or across treatment and control groups. An alternative tradition envisages judicial decisions as a potential resource, which can be used by activists as leverage in building movements and pursuing agendas in multiple forums. Here, the core question is not whether court decisions produce abrupt policy shifts, but how activists use them to challenge the status quo, mobilize interests, and generate pressure for policy change. A third approach sees legal precedent as a constitutive framework that shapes and constrains policymaking and its politics over time. The test for whether law matters under this approach centers on the degree to which judicial decisions influence the developmental trajectories of policy and politics, which includes consideration of paths not taken in the policymaking process.
That is not to say that the literature is wholly discordant. Despite their significant conceptual differences, these approaches tend to converge on the general idea that judicial policymaking shares many attributes with other policymaking processes: the implementation of judicial decisions, like statues and regulations, is contested and subject to capture by sophisticated interests; litigation, like lobbying, is a form of mobilization that seeks to translate policy grievances into effective political demands; judicial precedents, like other policies, generate policy feedbacks. Identifying similarities among judicial policymaking and its counterparts is a signature achievement in the study of courts and social policy, which has largely dispelled the “myth of rights” and simplistic notions that the law is somehow removed from politics. Yet it arguably has an unintended effect. Normalizing judicial policymaking—making it seem like other types of policymaking—threatens to render it less interesting as a distinct topic for research. This article suggests the time has come for all of the various research traditions in the field to return to foundational questions about what makes judicial policymaking distinctive and systematically study how these particular tilts and tendencies influence the continuing colloquy that drives the policymaking process.
What is the role of courts in social policy? Answering this question seems straightforward but is daunting. The immediate challenge is cutting through the fog of legal jargon that enshrouds litigation and judicial decisions and obscures their political and policy significance. Penetrating legalese, however, is only the start. A deeper challenge is coping with the enormous volume and scope of judicial decision-making, which has seeped into nearly every corner of social policy in industrialized democracies and contemporary welfare states. According to leading scholars, the United States is now a “litigation state” (Farhang, 2010; see also Burke, 2002; Epp, 2009; Kagan, 2001; Silverstein, 2009), in which groups on the left and right routinely use the courts to pursue policy goals (Epp, 1998; Keck, 2014). Beyond the United States, there is a parallel increase of “judicialization” (Gauri & Brinks, 2008; Ginsberg, 2003; Hirschl, 2004, 2008; Kapiszewski, Silverstein, & Kagan 2013; Sweet, 1999, 2000; Tate & Vallinder, 1995), “legalism” (Bignami, 2011; Kagan, 1997, 2007; Kelemen, 2011), and “legalization” (Goldstein, 2001). The growth of litigation in so many issue areas and political settings makes studying its policy effects of great interest, but, as Robert Kagan (1995) once noted, it raises tough questions about what scholars should do when there is too much law to study.
The diversity of judicial interventions in social policy compounds this difficulty. Sometimes courts act directly by creating new constitutional rights, recognizing new statutory or common law remedies, or issuing injunctions aimed at changing institutional structures and practices (e.g., Chayes, 1976; Feeley & Rubin, 1998; Sandler & Schoenbrod, 2003). Other times they act indirectly through procedural rulings that facilitate policy changes in other forums and in subsequent litigation. So, for example, courts can reduce impediments from passing ballot initiatives or relax standing requirements, which opens the door for repeat players to bring strategic litigation that can shift policy incrementally (Galanter, 1974; Keck, 2014). This variation makes it difficult to think about a single representative mode of court action in social policy.
Sampling is not the only challenge. Judicial decisions have “radiating effects” far beyond the courtroom and the participants in particular lawsuits, such as generating negative publicity or the threat of future liability (Galanter, 1983). These pressures may force interests outside the litigation process to create practices that can significantly shift social policy at the organizational level (Barnes & Burke, 2006; Edelman, 1990, 1992; Edelman, Uggen, & Erlanger, 1999; Epp, 2009). These court-inspired practices, in turn, can provide templates for legislative action (Talesh, 2012). Activists can also use court decisions and the language of rights as a tool to raise consciousness, mobilize interests, and challenge existing institutions, routines, and attitudes, all of which can contribute to the development of social policy (Epp, 2009; McCann, 1994; Sabel & Simon, 2004).
The possibility of radiating effects poses vexing questions for researchers. Do we focus narrowly on the effects of decisions on the parties to the relevant lawsuits? The stakeholders within the target policy area? Or should we expand the analysis to include actors who might use the language or logic of a decision to pursue agendas in other policy areas? What is the proper time frame for the analysis? Should we focus on the immediate fallout of decisions or allow for longer, more attenuated effects? If longer, how long? If the focus is too narrow, we risk overlooking important judicial contributions to social policy. If too broad, the analysis may become unwieldy.
A further complication is that courts do not act alone. In the United States, they operate within a system of “separated institutions sharing power” (Neustadt, 1990, p. 34). Consequently, courts decisions are embedded in an ongoing policy dialogue among different branches and levels of government (Barnes & Miller, 2004). The interactive nature of this dialogue makes it extremely difficult to untangle the effect of judicial decisions from the actions of other policymakers. Indeed, some argue that trying to isolate the courts’ role in social policy is a mistake because litigation, judicial decisions, politics, and policymaking are mutually constitutive, as groups use the language of rights and judicial outcomes as leverage in other branches and levels of government, while actions in non-judicial policymaking forums can shape the decision to litigate and how lawsuits are framed.
Given these layers of complexity, it is not surprising that scholars have adopted diverse approaches and offered divergent views on the role of courts in social policy. Findings run the gamut. Some insist that litigation and courts are a “hollow hope” that can affect social policy under very narrow circumstances at best and undermine it at worst (Rosenberg, 1991). Others contend that courts may exert too much influence over contemporary social policy, as growing “jurifidification” is deeply shaping American policy in ways that are hard to reverse (Silverstein, 2009). It is possible that both of these views are right within the confines of their own particular analytic and policy domains, so that, as is so common in the social sciences, scholars are simply talking past one another and generating more heat than light.
This article seeks to make sense of the rich and varied literature on the role of courts in social policy, which I define broadly as policy aimed at shaping constitutional rights and liberties as well as the administration of welfare programs and provision of social benefits. The goal is not to summarize the literature or provide a set of watertight compartments for categorizing studies. Many studies in the field intentionally combine different conceptual approaches, types of data, and research methods in an effort to triangulate, and some will not fit neatly into the proposed analytic boxes—this is, after all, an exercise in law and social science not zoology. Instead, the goal is an analytic map that identifies characteristic modes of studying how courts shape social policy and offers some clues for how scholars might proceed. The treatment will be selective by necessity, focusing on aspects of work that illustrate idealized versions of each mode of analysis while acknowledging that many important studies (as well as many nuances of the studies that are discussed) will be given short shrift. A final caveat is that the article focuses mostly on studies of courts in the United States and in the field of political science, although the proposed framework could apply to the vast (and growing) literature on the courts and social policy in sociology, comparative politics, and international relations.
The argument is that there are three main approaches to studying the role of courts in social policy. The differences are conceptual (not methodological), reflecting long-standing debates about the nature of judicial decisions and consequently how to study their effects. Despite their conceptual differences, these approaches tend to converge on the general idea that judicial policymaking shares many attributes with other policymaking processes: the implementation of judicial decisions, like the implementation of statutes and regulations, is contested, subject to capture by sophisticated interests, and hinges on a host of external factors, such as the number of veto points in the issue area and levels of public support; litigation, like lobbying, is a form of mobilization that seeks to translate policy grievances into effective collective action within shifting opportunity structures; judicial precedents, like other types of policies, have feedback effects that frame debates, shape interests, and create incentives for pursuing certain types of claims and modes of advocacy.
Identifying parallels among judicial policymaking and other forms of policymaking is a signature achievement, which has largely dispelled the “myth of rights”—the naïve assumption that rights are above politics, uniquely powerful and self-executing (Scheingold, 1974)—and has revealed the political and policy dimensions of ostensibly technical legal matters. So, after reading this literature, we see that filing a lawsuit is a form of agenda setting, class action litigation and contingency fee arrangements are means to overcome collective action problems, and bankruptcy is a form of policy retrenchment as financially strapped cities and companies use its arcane provisions to scale back pension and other obligations (Barnes, 2007).
Yet it arguably has an unintended effect. Normalizing judicial policymaking—making it seem like other types of policymaking—threatens to render it a much less interesting subject to study (Burke & Barnes, 2009). This suggests the time has come for law and policy scholars to return to core questions about what makes judicial policymaking distinctive and study how these particular tilts and tendencies influence the continuing colloquy that drives the policymaking process. These questions inevitably push the field toward comparative analyses—both across and within countries—aimed at exploring what social policies would look like in the absence of judicial intervention or, more tractably, in the shadow of different types of legalism or amounts of litigation (Barnes & Burke, 2015; Epp, 2009; Kagan, 2001).
Three Approaches to Studying the Courts and Social Policy
The first step in trying to come to grips with how courts shape social policy is grappling with the sprawling literature on the subject. This exercise is a bit like taking a Rorschach test because the literature is so vast and varied what anyone sees probably tells us more about the observer than what is on the page. Nevertheless, a central contention of this article is that patterns of analysis come into focus when one looks beyond the details of various studies—such as their policy foci, whether key decisions are based on constitutional, statutory, administrative, or common law, and historical contexts—and concentrate on their often implicit assumptions about the nature of judicial decisions. These assumptions, in turn, drive how scholars study the role of courts in social policy, what data are seen as useful, and the likelihood of finding that courts matter. The result is three distinct approaches: (1) gap studies (where judicial decisions are seen as policy commands); (2) judicial mobilization studies (where judicial decisions are seen as a source of ideas or a normative resource for activists); and (3) judicial feedback studies (where judicial decisions are seen as frameworks that structure politics and policy over time). Each is discussed in turn.
Gap Studies: Judicial Decisions as Policy Commands
Gap studies—also known as judicial impact studies—represent the traditional approach to studying the role of courts in social policy. They treat judicial decisions as prescriptive commands, which can take the form of “thou shall,” “thou shall not,” or “thou may.” For example, in Brown v. Board of Education (Brown I), the Court ordered southern states to desegregate schools with all deliberate speed, and, in the more recent decision on marriage equality, Obergefell v. Hodges, the Court held that states could not deny same-sex couples marriage licenses. They are called gap studies because they seek to measure the distance between the aspirational goals of judicial commands and policy and political realities on the ground.
From an analytic perspective, gap studies treat judicial decisions as independent stimuli to the policymaking process or, in the language of experiments, “treatments.” From this perspective, assessment typically involves at least one of two types of comparisons. The first compares outcomes before and after the decision is handed down. Here, the analysis (whether qualitative or quantitative) takes the logic of an interrupted time series, and the best evidence of judicial impact is sharp change in the dependent variable immediately following the decision. After all, if policy or discourse shifts immediately after a judicial decision, it is difficult to assert that other factors intervened and caused the change. The second divides cases into groups that are subject to the decision and those that are not. It then compares outcomes across the groups in an effort to estimate the effect of the decision. The gold standard for this type of research from a methodological perspective is a randomized laboratory experiment or a natural experiment that features “as if” randomization (Dunning, 2012). However, because randomization is difficult to achieve in this area, scholars often seek to triangulate between longitudinal and cross-sectional observational data.
Taking a look at Rosenberg’s The Hollow Hope (1991) should make things more concrete. It seeks to identify the conditions under which courts can create significant social change at the national level. To make this assessment, Rosenberg looks at some of the most celebrated social change decisions of the Warren and Berger Courts, including Brown v. Board of Education and Roe v. Wade. He tirelessly delves into the record, plotting change in policy outcomes and discourse after these decisions, and typically finds little evidence of significant short-term change. So, for example, he charts the percentage of African American children in school with white children in the South and finds that the percentage hovers close to zero for years after Brown I in 1954 and its follow–up, Brown II, in 1955 that dealt more directly with issues of implementation (see Figure 1). Moreover, the numbers significantly increase only after the president and Congress used their powers of the sword and purse to coerce change at the local level. From the perspective of gap studies, the elected branches of government, not the courts, drive the story of school desegregation in the South, serving as the proximate cause of change.
Given this type of evidence along a variety of dimensions and multiple policy areas, Rosenberg concludes that litigation and courts typically have little direct effect on social policy. He goes on to argue that the “fault lies not merely with the message but the messenger itself” (1991, p. 213), implying that courts are inherently weak policymakers given the doctrinal, institutional, and cultural constraints on their ability to enforce their decisions unilaterally. Even worse, Rosenberg contends that litigation acts as “political flypaper” because its high costs force groups to divert precious resources from other supposedly more effective forms of advocacy, such as lobbying and grassroots activism. As a result, groups become trapped in the courts, pursuing costly and typically feckless remedies (Rosenberg, 1991, p. 341; see also Forbath, 1991).
Rosenberg’s dramatic rhetoric belies a more measured (and less controversial) view of the courts’ role in social policy, which is reflected in the development of his Constrained Court Model of judicial influence. The Constrained Court Model posits a set of narrow conditions under which courts can make social policy unilaterally. These include (1) ample precedent for judicial decisions, (2) congressional and executive support for change, (3) some public support (or low opposition), and (4) one of the following: (a) positive incentives for compliance, (b) costs for non-compliance, (c) market incentives for compliance, or (d) extrajudicial actors at the local level who serve as allies (typically using the Court’s decisions as cover for pursuing their own agendas).
The Constrained Court Model parallels the findings of earlier gap studies from the 1970s and ’80s, which shared Rosenberg’s skepticism about litigation as a means of dramatic social change (Feeley, 1992; McCann, 1992). So, for example, Stuart Scheingold’s famous critique of the myth of rights strongly questioned the assumption that judicial decisions and rights could rise above politics and directly shift policy in the fragmented American system of government. And, like Rosenberg, Scheingold argued that if the Court was to make a difference, it needed to frame claims in terms of goals that are “firmly rooted” in the Constitution (1974, pp. 97–116) and swim with “the political tide” (1974, p. 97).
Matthew Hall’s The Nature of Supreme Court Power (2011) updates Rosenberg’s analysis. Like prior gap studies, Hall seeks to estimate the impact of major Supreme Court decisions. His analysis, however, uses more systematic case selection, data collection, and statistical methods and looks at a wider swath of cases. More importantly, Hall’s analysis is explicitly comparative based on a typology of policymaking contexts, which distinguishes the environment of judicial decisions along two dimensions: (a) levels of public support for the decision and (b) the degree to which lower courts can directly implement Supreme Court rulings (where “vertical” issues can be directly implemented by lower courts and “horizontal” issues require allies outside of the courts).
Although formulated in slightly different terms, Hall’s analysis parallels aspects of the Constrained Court Model in that both stress the role of fragmented authority and public support in shaping the Court’s influence on social policy. So, where public support is high and implementation is subject to few veto points, Hall finds that the Court is effective. Where public support is low and the Court must rely on other branches and levels of government to implement its preferences, he finds that the Court is less effective. Contrary to earlier gap studies, however, Hall argues that the Court does not always need to ride the tide of public opinion to make a difference (2011, p. 160), finding that when the Court’s decisions can be directly implemented by the lower courts, the Court “commands impressive powers even when facing ‘serious resistance’ … ‘[w]ithout the support of real power holders.’”
From the perspective of Hall’s comparative analysis, the data in Figure 1 are not surprising. Instead of Brown v. Board representing a “most likely” case for finding judicial impact, as Rosenberg implies, Hall argues it represents a least likely case because (a) desegregation was a lateral issue (the implementation of the Court’s ruling depended on the states and local school boards) and (b) there was significant public opposition to the decision in the South. Hall adds that the effect of the Court’s decisions differed in the border states, where there was less opposition to its desegregation rulings. In those states, he finds statistically significant increases in levels of school desegregation after Brown I and Brown II. Using this regional comparison, Hall concludes that the Court can make a difference even in a lateral issue area as long as there is a lack of public opposition on the ground (Hall, 2011, p. 129).
Stepping back, gap studies tell a fairly generic story of policy implementation, as the factors that affect judicial implementation seem to apply equally to other, less court-centric modes of policymaking (see generally Burke & Barnes, 2009; Epp, 2008). Presumably the implementation of congressional statutes or agency regulations would also benefit from support from the other branches of government, some public support (or low opposition), a small number of veto points, incentives for compliance, and local actors who use federal policy initiatives as cover for pushing their own policy agendas. The one factor in gap studies that on its face seems particular to courts—that judges root their policy interventions in well-established legal precedents and constitutional values—can easily be restated as the familiar public policy principle of incrementalism: namely, the greater the level of change demanded by officials, the less likely it will be immediately implemented (Sabatier, 1986). From this vantage, the major contribution of gap studies is to demonstrate similarities between judicial implementation and other forms of implementation. While many of these insights might seem “simple and intuitive” (Hall, 2011, p. 160), it is a critical corrective to assumptions that the courts are somehow “non-political” and that judicially created rights are somehow above the normally contested and messy process of implementation.
Judicial Mobilization Studies: Judicial Decisions as Ideas or Normative Resources
Judicial mobilization studies start with fundamentally different assumptions about the nature of judicial decisions and, as a result, end up with very different insights about their role in social policy. Instead of seeing judicial decisions as policy commands, judicial mobilization studies envisage judicial decisions as inherently ambiguous and subject to multiple interpretations. Under this view, measuring the gap between the aspirations of judicial decisions and policy outcomes is a nonstarter, because the meaning of judicial decisions, while not wholly pliable, is typically vague and contestable and must be constructed from the bottom up. Accordingly, judicial decisions are better understood as a source of ideas and normative claims for activists, who can use the language of rights and court decisions as a part of ongoing (and highly contingent) struggles to disrupt entrenched status quos and pursue new policies. Consistent with Scheingold’s call to eschew the myth of rights and embark on the study of the politics of rights, judicial mobilization scholars see the handing down of judicial decisions as “perhaps best viewed as the beginning of a political process in which power relationships loom large and immediate” (1974, p. 85).
This conception of judicial decisions suggests that testing the courts’ influence on social policy does not hinge on whether they trigger significant shifts in the short term or across groups that fall under the decision and those that do not, but how effectively activists use decisions and the language of rights in the long term as the opportunity structure for policymaking opens and closes over time. By definition, this type of analysis requires careful process tracing to assess the longitudinal effects of judicial decisions and different metrics of success. Perhaps most importantly, the role of the courts and judicial decisions should be assessed at various steps in the movement-building process from raising consciousness and mobilizing interests to setting agendas and eventually creating coalitions that can negotiate new rules and implement change. Failure or only partial success at the implementation stage should not discount success at other stages. The point of this type of analysis is not to estimate the average marginal effect of judicial decisions on policy or politics but trace how judicial decisions act as part of a shifting matrix of factors that contribute to the building of social movements and creation of policy.
Envisaging judicial decisions as socially constructed raises the possibility that courts do not shape policy from the top down by prescribing the behavior of litigants; instead, the causal arrow may be reversed (Edelman, 1992; Edelman, Uggen, & Erlanger, 1999). The argument is that organizations are often confronted with vague laws before courts have had a chance to interpret them. In civil rights, organizations reacted to sweeping anti-discrimination statutes by creating formal rules and bureaucratic structures, such as “Equal Employment Opportunity Polies,” “Affirmative Action Offices,” and formal grievance procedures. Some of these responses may have advanced the underlying goals of workplace equality, but others may have engendered only symbolic compliance that ostensibly follows the letter of the law while preserving the status quo or, even worse, offers legal window dressing for discriminatory practices. Over time, courts serve to ratify and legitimate these practices, which then are copied by lagging organizations. The net result is a form of capture in which court-based social policy is not what judges say it is but what well-organized interests, especially businesses, say it should be. Roughly parallel dynamics have been suggested in connection with environmental regulation and some consumer safety laws (e.g., Gunningham, Kagan, & Thornton, 2003; Talesh, 2012).
The basic differences between gap and judicial mobilization studies can be illustrated by returning to Figure 1, which depicts the percentage of African American children attending elementary and secondary school with white children in the South from 1954 to the early 1970s. Whereas gap studies would emphasize the lack of immediate change in policy outcome following Brown I and Brown II, judicial mobilization studies would look at the long-term trend of the curve, beginning by pointing out the figure should be traced back much earlier. This longer time frame would place any time lag following the Court’s decisions in better perspective, emphasizing how the school desegregation cases sought to challenge a deeply entrenched system of social oppression. From this vantage, the shift from 1954 to the early 1970s was quite dramatic, reversing policy and social practice dating back centuries. More importantly, the question is not how much of the eventual shift in policy can be attributed to the courts alone, but rather how litigation, judicial decisions, and the language of rights contributed to each step in the fight for desegregation in multiple forums and over many years. How, for example, did activists use litigation, court rulings, and the language of rights to help frame their demands, raise consciousness, mobilize interests, set agendas, and build reform coalitions that pressured Congress and the president to act? On these dimensions, it seems that courts and judicial decisions are much more likely to be consequential (see Feeley, 1992; Francis, 2014; McCann, 1992).
It is worth noting that Rosenberg explicitly recognizes this possibility in The Hollow Hope, acknowledging that courts can have both direct and indirect effects on social policy. However, Rosenberg generally argues that groups are unlikely to mobilize around decisions if they are unaware of them and many judicial decisions are obscure. Using this logic, he controversially dismisses the potential indirect effects of Brown v. Board on the grounds that it garnered little media attention at the time—a point that has been vigorously disputed by subsequent analyses (e.g., Flemming, Bohte, & Wood, 1997).
Michael McCann’s Rights at Work (1994) provides a fuller account of judicial mobilization and is often seen as a foil to Rosenberg’s The Hollow Hope. As such, it provides a useful lens to further explore the differences between gap and judicial mobilization studies. The substantive focus of Rights at Work is the pay equity movement, which traces its roots to the 1970s when unions and individual workers began bringing novel gender discrimination lawsuits. Unlike prior litigation that centered on employment practices that paid women less than men for the same job, these suits contended that job categories dominated by women are systemically paid less than analogous jobs occupied by men and that this practice constituted discrimination, as women were denied equal pay for jobs of comparable worth. In a few high-profile cases, including a 5-4 Supreme Court decision (County of Washington, Oregon v. Gunther), judges seemed sympathetic to the comparable worth argument. These partial judicial victories, however, were short-lived, the wage gap persisted, and, by the time McCann wrote his book in the 1990s, many felt that the movement had run out of steam.
Analytically, The Hollow Hope and Rights at Work are mirror opposites. Whereas Rosenberg takes on high-profile cases that most would assume were integral to successful social policy movements, McCann does the reverse. He explores the role of litigation and judicial decisions in a movement where the court victories were partial and the movement was seen as falling short of its ultimate goal. However, McCann does not treat these decisions as policy commands to be followed or not; instead, he shows how activists used these decisions to mobilize women. So, for example, media coverage of the early court victories was widespread, and political activists used this publicity as part of organizing campaigns based on slogans like “Raises, Rights, Respect” and “Help Defend Working Women’s Rights.” These campaigns helped alter the expectations of some women workers and provided a language for articulating grievances and common interests, which is essential to social movements. Equally important, activists were not caught in the myth of rights or the political flypaper of litigation—they understood that the language of rights and lawsuits were only one tool in the fight for equality that needed to be combined with other forms of pressure and advocacy. Consistent with this sophisticated view of courts and litigation, some unions used the threat of lawsuits and lingering uncertainty in the law on comparable worth to gain wage concessions and advance legislative campaigns, thereby parlaying partial court victories into advances in other forums. While the final policy results were not a complete success—McCann insists that the wage gap has significantly closed at least as an indirect result of the comparable worth movement even if it has not been eliminated (1994, pp. 43–44)—the contributions of litigation and the courts to raising consciousness, building coalitions, and changing women’s perceptions of fairness in the workplace were substantial and lasting.
McCann sums up his findings in a “process-based Path Model” of legal mobilization, which contrasts with Rosenberg’s Constrained Court Model. In McCann’s model, court decisions can be used to advance movements when there is a confluence of political opportunities and organizational resources, which provide a favorable environment for advocacy. Within this advantageous opportunity structure, advocates can use the language of rights and even modest court victories to help build consciousness about shared interests that helps lay the foundation for collective action (McCann, 1994, p. 136). McCann stresses “both the specific meaning and relative power of particular legal conventions are shaped by extralegal discourse and situational factors. The relationship among [these] factors is dialectical and interactive rather than linear and mechanical” (p. 137). Under these circumstances, estimating the independent effects of litigation and judicial decisions is intractable, but tracing how litigation and the courts contribute to movement building and policy change more holistically is useful and illuminating.
Charles Epp’s Making Rights Real (2009) offers a more recent example of judicial mobilization analysis. Like other judicial mobilization studies, Epp examines change over the course of decades; he traces how litigation contributed to challenging existing practices and creating an effective reform coalition; and he provides historical context to reveal the shifting opportunity structure for change and how activists took advantage of these shifts. The power of Epp’s argument—like Hall’s judicial impact analysis—derives from its explicitly comparative research design, which looks at policies affecting policing (in the United States and the United Kingdom), sexual harassment, and playground safety, as well as its expert blending of survey, archival, and interview data. Critically, his cases embody different levels of rights-based advocacy, as activists in policing and sexual harassment used the language of constitutional and statutory rights more extensively than advocates for playground safety (and advocates for policing reform in the United Kingdom).
Epp’s comparative analysis shows that courts and litigation were instrumental to change over the long haul. The gist is that activists used litigation and the threat of liability to challenge existing policies and force local governments to defend dubious practices in court and the media. This pressure provided activists and reform-minded insiders an opening to push for change. The preferences of these factions, however, did not align perfectly. Insiders wanted greater levels of professionalism, while reformers wanted greater public oversight and participation. These interests eventually converged on a system of “legalized accountability”: an administrative model that states its commitment to legal norms, provides training and communication systems to convey the importance of these norms and the need to change existing practices, and internal oversight to assess progress and adjudicate violations. Thus, the activist got a system of accountability reflecting important legal norms, while insiders made sure that professionals within the organization controlled the system. In this account, litigation is not a unilateral stimulus for change. It was a source of norms that could be institutionalized and a tool for challenging the status quo, as the publicity generated by successful lawsuits and the “fertile fear of liability” created opportunities to challenge accepted practices. Moreover, variation in the extent to which reformers used the language of rights and generated credible litigation threats helped explain variation in the degree to which cities adopted legalized accountability, as rights-based advocacy seemed to provide leverage in the cases of policing and sexual harassment that advocates seemed to lack in playground safety.
Like gap studies, the findings of judicial mobilization studies fit nicely with the general public policy literature, which has long recognized that laws and regulations are not self-executing and that short term, before-and-after analysis is not the only (or even the most appropriate) test of their social policy impacts. As a result, public policy scholars have prominently called for studies of how laws and regulation mobilize “advocacy coalitions” that seek change in multiple forums (Sabatier, 1986, 1999; Sabatier & Jenkins-Smith, 1993). Indeed, McCann acknowledges that his process-based path model explicitly builds on Doug McAdams’s more general political process model of social movements (1982). Finally, the details of judicial mobilization look very similar to other forms of mobilization. Both judicial mobilization and its counterparts ebb and flow based on strategic activity within shifting opportunity structures, and, as part of that process, one would expect that the threat of agency enforcement (and related media coverage) would have similar effects as the threat of litigation. Finally, similar to worries that court-based social policy is a mere reflection of self-serving business practices, the public policy literature has long been concerned that regulated industries will capture agencies as regulators internalize industry practices and standards, moving from the role of watchdog to lapdog.
None of this is intended as a criticism of the judicial mobilization literature. To the contrary, by carefully plotting how litigation and rights are used in the complex and contested process of mobilization, and showing how litigation and courts often combine with other modes of advocacy, this literature challenges the idea that litigation crowds out other forms of advocacy or limits the strategic vision of activists. It also identifies mechanisms that specifically link litigation to significant change. These are major contributions. However, like gap studies, they tend to normalize judicial mobilization, making it seem part and parcel of the more generic processes of interest mobilization and social movement building within modern administrative states.
Judicial Feedback Studies: Judicial Decisions as Constitutive Frameworks
Judicial feedback studies take another tack. Instead of thinking of judicial decisions as a command or as a resource, these studies envisage judicial decisions as frameworks that shape and constrain policy and politics over time. The idea that judicial decisions and rights act as constitutive frameworks has been around for a long time (Barnes & Burke, 2015). Political theorists dating back to Edmund Burke and Karl Marx critically examined how rights shape our understandings of social obligations and policy grievances (Waldron, 1987). These themes were echoed in the 1970s and ’80s, as political theorists ranging from communitarians to critical legal studies scholars argued that framing policy in terms of legal rights (and channeling conflict over them though litigation and the courts) distorted politics by reducing broad social problems into discrete disputes between individual claimants and offering a cramped view of social life (Gabel & Kennedy, 1984; MacIntyre, 1981; Taylor, 1998; Tushnet, 1984). Critics of judicial policymaking have sounded similar themes, arguing that the legalistic framing of complex policy issues tends to preclude the consideration of broader issues, such as the budgetary consequences of judicial mandates, and threatens to exclude key stakeholders from the deliberative process (Derthick, 2005; Horowitz, 1977; Melnick, 1983).
There is obviously overlap between the judicial feedback literature and its counterparts, especially judicial mobilization studies by scholars like McCann and Epp, whose subtle accounts show how judicial decisions are both a resource and constraint on policy and politics. Given this overlap, it is useful to return to Figure 1 and compare how the ideal types of these approaches would interpret its data. To reiterate, gap studies would focus on the lack of change in the percentage of African American school children attending schools with white children immediately following Brown I and Brown II. Judicial mobilization studies would analyze how activists used litigation and the language of judicial decisions to build movements and push for change step by step, helping to bend the curve over time. Judicial feedback studies would ask how litigation and the language of judicial decisions structured the politics and policies of desegregation during this process. So, instead of tracing how activist used litigation and the language of rights to build their movement, judicial feedback studies would ask: How did success in the courts change the expected returns of different advocacy strategies? Did advocacy groups adapt their organizational resources in the shadow of these lawsuits by hiring more lawyers and legal strategists? Did the language of these decisions shape their demands? In short, instead of tracing how activists used court decisions and the language of rights from the bottom up, judicial feedback literature traces how court decisions and rights shape the broad incentives and language of these movements from the top down.
Gordon Silverstein’s discussion of how legal precedents shape policy trajectories in Law’s Allure (2009) illustrates judicial feedback analysis. According to Silverstein, legal precedents do more than guide future judicial decisions because all policymakers use judicial opinions to justify their actions. As a result, legal precedents need not work in a lineal fashion within specific policy areas; they can spiral across policy areas, providing rationales for policy initiatives in a variety of forums. This conception of legal precedent recasts court decisions as an iterative framing mechanism that can significantly affect the policy process across issue areas, especially when the language and reasoning of judicial decisions become “givens” that define the range of policy options.
Silverstein applies this conception to a variety of policy areas, including social policy issues like abortion. At first glance, his analysis shares many features of judicial mobilization analysis: it focuses on change over the long term; it traces the process of policy development; and it highlights contingency and strategy. Yet its treatment of judicial decisions tends to stress issues of structure, not agency, especially once the initial legal precedents are set and create the terms of subsequent battles. In his discussion of abortion, for example, he argues that advocates could have used a variety of legal theories to challenge anti-abortion laws, including equal-protection and right-of-privacy grounds. Early decisions, however, tended to favor the right-of-privacy rationale, and these precedents created incentives to pursue this path at the expense of others. According to Silverstein, this framing proved fateful as the right of privacy litigation culminated in the Court’s ruling in Roe, which created a trimester framework governing state regulation of abortion. In so doing, the Court called into question the criminal abortion statutes of every state as opposed to striking down state laws one at a time as unconstitutionally vague or creating unequal conditions. The result was to constitutionalize the issue, ensuring that the struggle over abortion policy would be centered in the courts. The sweeping nature of Roe, Silverstein further contends, helped galvanize a backlash by social conservatives, which produced a highly divisive politics on the issue that continues to play out within the broad terms prescribed by the Court. It is worth stressing that these decisions are not seen as discrete treatments that provide a single stimulus to the policy process. Instead, Silverstein analogizes the role of courts in social policy to a game of Scrabble, where the players begin with a blank board and the initial player can move in any direction. Once players begin to build in one direction, the room to maneuver becomes increasingly limited. “In theory, it is still possible to move the game off in a radically different direction, but it becomes increasingly difficult (and unlikely) for that to happen” (Silverstein, 2009, p. 66).
My own recent work with Thomas F. Burke adds an explicitly comparative twist to the judicial feedback literature (Barnes & Burke, 2015). Similar to Epp, who compares the effect of rights- and non–rights-based advocacy, we compare the interest group politics of policies that are structured around rights, courts, and litigation with policies that do not have this structure. Specifically, the analysis focuses on the field of injury compensation, which, like many areas of American social policy, includes a vast array of policies of diverse design, some based on individual private lawsuits (“adversarial legalism”), others on social insurance programs (“bureaucratic legalism”), which are publicly funded, no-fault government programs that distribute benefits evenly based on fixed payment schedules. Applying this comparative strategy to quantitative data on four decades of congressional hearings and three historical case studies, we find that by organizing social issues as discrete disputes between parties, adversarial legalism seems to individualize politics by assigning fault to specific entities and creating a complex array of winners and losers. That over time creates a distinctively fractious politics, in which interest groups associated with plaintiffs and defendants fight not only each other but among themselves as well. This pattern is particularly pronounced when we compare it to the political trajectory of bureaucratic policies that compensate for injuries. There we see moments of great contention, but long periods of relative peace and greater solidarity among interests.
Similar to its counterparts, the findings of the judicial feedback literature find resonance with the broader public policy literature, which has long recognized that policy shapes politics (Schattschneider, 1935). Digging a bit deeper, we see similar mechanisms are at play in judicial and non-judicial settings. For instance, both court decisions and other types of policies can influence politics by creating incentives for individual actors and by influencing beliefs about what is “possible, desirable, and normal” (Soss & Schram, 2007, p. 113; see also Pierson, 1993). And both litigation and welfare program administration are prone to increasing returns: the more participants use them, the more they expect success, as participants learn the system’s idiosyncrasies, customize their resources to particular claiming processes, and set favorable legal or administrative precedents (Pierson, 2004). Once again, the more we look at the role of courts in social policy, the more judicial policymaking resembles other types of policymaking.
The literature on courts and social policy is conceptually and empirically rich, challenging the once-conventional wisdom that courts are non-political and that rights have a special place in the political arena. Despite the sharp differences in how the literature treats judicial decisions—as a policy stimulus, as a political resource, as a constitutive framework—the different approaches converge on a common set of themes about judicial policymaking being political and politicized, just like policymaking in other branches and levels of government. Equally important, many of the same factors and dynamics in judicial policymaking are seen elsewhere. Judicial implementation, like other modes of implementation, is deeply contested and subject to capture. Its effectiveness hinges on external factors related to the number of veto points in the issue area, public support, and allies in the other branches and levels of government. All things being equal, incremental decisions—whether rooted in prior judicial precedents or existing policy—stand a better chance to be implemented than non-incremental ones. Judicial mobilization, like any form of social movement, is highly contingent, reflecting the combination of shifting opportunity structures, organizational resources, and skillful advocacy, as the process moves from raising consciousness to collective action, agenda setting, and rule-making and implementation. And judicial decisions—just like other forms of policy—have political feedbacks by framing policy issues, distributing costs and benefits, and creating incentives that structure its underlying politics.
These are crucial insights but beg the question: Why study the courts and social policy separately at all? Why not just eschew the tired law/politics distinction entirely and incorporate the courts into a broader analysis of implementation, mobilization, and policy feedbacks? One could argue that this is happening, as the literature on modern welfare states is beginning to broaden its conception of social policy to include things beyond traditional welfare programs, such as tax policy and the regulation of private insurance and pension benefits. In the process, it has broken down the distinction between public and private remedies (Hacker, 2002). This “welfare state nobody knows” (Howard, 2008) surely includes litigation, as groups use constitutional, statutory, administrative, and common law litigation to pursue a variety of policy goals related to the provision of social benefits and basic rights governing social life (Erkulwater, 2006; Keck, 2014; Melnick, 1994).
In the public law literature, however, there is reluctance to subsume the study of courts and social policy into a general study of politics and public policy. Even scholars that forcefully argue that courts serve basic political and policy functions also contend that judges perform these functions in a distinct manner. So, for example, Martin Shapiro argues that courts perform a similar role as agencies in policy formulation and implementation (1968, p. 44). Yet he quickly adds that judicial and administrative policy formulation and implementation are likely to differ in that judges tend to be generalists as opposed to specialists, they enjoy greater protections from removal than political appointees in agencies, and they often exercise negative power by striking strike down laws through judicial review as opposed to positively shaping policy through the promulgation of specific regulations (Shapiro, 1968, p. 44). Feeley and Rubin (1998) make a similar point in their analysis of prison reform cases, arguing that policymaking is a routine judicial function. Yet they maintain judicial policymaking differs from other modes of policymaking, in part because the rule of law requires judges to use specialized modes of legal reasoning to convince other judges to adopt their decisions (Feeley & Rubin, 1998, p. 242). In short, the medium often matters, and the courts do seem to represent a distinct medium for politics and policy.
The conviction that courts play a parallel but distinctive role in social policy brings the analysis full circle, requiring reconsideration of the question that opened this article. In light of the many insights of the literature, the question is not simply the role of the courts in social policy. Their role is varied and can influence each step of the policymaking cycle, beginning with consciousness raising, issue framing, and interest group mobilization and including agenda-setting and rule-making and implementation. Instead, the critical questions are: How do courts perform these familiar functions differently than other policymaking forums? and How do these distinctive judicial tendencies matter?
These questions imply a research agenda that is inherently comparative, requiring scholars to struggle with the difficult counterfactual of what the world would look like in the absence of litigation and courts or at least under different types of legalism or varying amounts of rights-based advocacy. The good news is we do not have to begin from scratch. As we have seen, recent gap studies, judicial mobilization studies, and judicial feedback studies have added comparative dimensions to their analyses, comparing the impact of judicial decisions in different policy environments, juxtaposing the effectiveness of rights-based and non–rights-based advocacy, and contrasting policy feedbacks of different types of legalism. Meanwhile, comparative scholars are increasingly looking at the courts’ role in policymaking processes (e.g., Gauri & Brinks, 2008; Kapiszewski, 2012; Kapiszewski, Silverstein, & Kagan, 2013). This work should be encouraged. Pursuing a comparative approach will allow us to better explore the distinctive trade-offs of using courts to pursue social policy and identify the characteristic costs and benefits of judicially constructing policy and its politics. In an age of growing judicialization around the globe, these insights would be a welcome addition to the store of useful knowledge.
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