RACE AND CIVIL RIGHTS

We begin our interrogation of constitutional adjudication’s instrumentality by considering the issue of race and equality under the US Bill of Rights. In particu­lar, the focus will be on the Warren Court’s Fourteenth Amendment jurispru­dence, which has now attained iconic status in terms of constitutional law’s capacity to effect progressive social change.

In examining the impact of Warren era equal rights judgments, we are not holding the Court to the standard of erasing all forms of racial prejudice, thus inviting the inevitable conclusion that it has failed. Rather, the object of scrutiny is the view that certain specified concrete benefits will follow if the Court is per­suaded by one side or the other in the constitutional debate. Also, we have to be careful to measure the jurisprudence on its own terms—if, for example, it speaks in terms of desegregating southern schools, then it should be assessed in terms of whether this has been achieved. In these ways, we avoid the charge of caricaturing the Court’s record: rather, we are conducting a legitimate inquiry into the efficacy of the case law, which takes seriously the intellectual and finan­cial resources spent by the legal and civil rights communities in trying to direct constitutional adjudication to their own ends.

‘Top-down’ Approaches

There are now a number of studies which challenge the view of the Supreme Court as an important source of minority rights. Gerald Rosenberg’s The Hollow Hope^[433] provides us with a helpful collation of empirical data which he forcefully employs to argue the case that court orders are not self-executing. Rosenberg’s target is what he sees as the dominant role of courts as ‘powerful, vigorous and potent proponents of change.’^[434] The dominant understanding of the Warren Court as the key actor in securing blacks’ civil rights is axiomatic of this ‘dynamic court’ view; however, Rosenberg argues that instead the ‘con­strained court’ model,^[435] which emphasises the institutional limitations of the Court to effect change, better reflects the record. Drawing on quantitative data, Rosenberg argues that claims of a direct link between the Warren Court’s civil rights jurisprudence and progressive change are found empirically wanting. He undertakes a detailed analysis of the school desegregation cases from 1954-64. This is presented as an appropriate period for isolated assessment of the Court’s impact, given both the Court’s bold prosecution of desegregation, and the neg­ligible action from Congress and the federal government.^[436] Here, the figures show that, for example in the Southern states, where the segregation problem was most acute, there was virtually no change in the percentage of black chil­dren attending the same elementary and secondary schools as whites, rising from almost zero in 1954, to only 1.2 per cent ten years later.^[437] Rosenberg high­lights that once the elected branches of government take up the desegregation case, with the important step being Congress approving the Civil Rights Act 1964, there is a greater intensity of change.

With regard to higher education, Rosenberg again contrasts the Court’s firm rejection of the separate but equal doctrine with the continuing fact of segrega­tion, which only begins to change with the passing of the 1964 Act. Here, in the South, we see a change from 4639 blacks attending traditionally white colleges and universities in 1963, to 20,788 in 1966, although this still only amounted to 2.6 per cent of the overall enrolment.^[439] In some Southern states, later increases are found, with black enrolment, for example in Alabama and South Carolina, rising from 3.3 per cent and 2.8 per cent in 1970, to 10 per cent and 9 per cent in 1978 respectively. He also finds that while from 1940 the Supreme Court had upheld the voting rights of blacks, for example by 1958, a year after Congress first addressed the issue with civil rights legislation, black voter registration had grown from 5 per cent to 25 per cent. However, the changes after that are more striking: by 1970, five years after the federal Voting Rights Act was enacted in 1965, the percentage of the black population registered to vote was 66.9 per cent.^[440]

In contrast to the Court’s relative ineffectiveness, Rosenberg argues that the key moment for the civil rights movement was the decision of the Johnson administration to lend its support through the 1964 Act. This provided greater institutional support for implementing change. For example, under the 1964 Civil Rights Act, federal funding of schools was now directly linked to achiev­ing desegregation.^[441] Also, the Voting Rights Act, which placed examiners in election districts to monitor devices like literacy tests, led to a more broad-based approach than individual lawsuits to register individual voters.^[442] These reforms should also be seen as part of a constellation of factors, including a change of heart by the states’ political leadership, and changing social and cultural atti­tudes which were breaking down racial barriers.^[443] Thus, the Court in the 1960s encountered less hostility and opposition from the state politicians, in whose hands the task of implementing desegregation ultimately rested, and also was able to give its orders more weight, for example, by threatening to withhold fed­eral funds from segregationist school boards.^[444] Rosenberg’s conclusion from this analysis is that given the necessity of executive action, and broader societal receptivity, for social change to occur, ‘paradigms based on court efficacy are simply wrong.’^[445]

‘Bottom-up’ Approaches

While Rosenberg gives us a ringing restatement that court orders are not self­executing, some commentators suggest we should be wary of the methodologi­cal implications of his approach. Michael McCann charges in particular that by seeking to assign discreet causes to events, Rosenberg himself relies on too instrumental an understanding of causation^[446] which exaggerates the potential importance of courts, as well as legislators and administrators, in shaping social conduct.^[447] Accordingly, McCann suggests the need to consider ‘bottom-up’ as well as ‘top-down’ approaches, which place social struggles at the centre of analysis, and where courts ‘play an important, if limited and partial, role in fashioning the different “opportunity structures” and discursive frameworks within which citizens act.’^[448] Within this framework, the contribution of courts to social change is also assessed in terms of indirect effects.^[449] I agree with McCann that we should be wary of lapsing into an overly instrumental account of social phenomena in our critique of the instrumental assumption in constitu­tional law; however, with regard to the civil rights issue, we find a strong case that litigation was not very effective even indirectly, and that moreover, it may have had adverse unintended consequences.

Stuart Scheingold’s work is perhaps the leading example of the ‘bottom-up’ approach. Scheingold seeks to carve out a middle way between the myth of rights outlined above, and the view that constitutional adjudication has produced broadly hegemonic results.^[450] Instead, he starts from the premise that ‘rights in the abstract cannot be thought of as either allies or enemies of progressive tendencies but rather as an arena for struggle.’^[451] Turning to the desegregation issue, Scheingold argues that it was legislative intervention, not litigation, that was the decisive step.^[452] Indeed, if there were any direct effects flowing from Brown, it was to harden political will in the south against deseg­regation, as evidenced by the campaign of ‘massive resistance’. Thus, Scheingold finds the claim that Brown had an indirect effect, in terms of moral suasion of the key political actors, unsubstantiated. To the extent it had an indi­rect effect, this was in mobilising political action, first through the civil rights movement, which eventually brought pressure on the legislative and executive branches to act.^[453]

The added value of Scheingold’s analysis is, that while his overall conclusion remains that the politics of rights have been generally hegemonic, he proffers an explanation as to why Brown may have contributed, however contingently, to desegregation. For Scheingold, the key point from the civil rights cases is that adjudication ‘cannot neutralize entrenched power,’^[454] but ‘can only focus atten­tion on accepted values and on departures from those values.’^[455] Thus, where the Brown decision (indirectly) provoked a crisis, this could be resolved in a progressive manner because US society by the 1960s had ‘widely accepted [deseg­regation] as a just ideal.’^[456] However, when the Court provoked crises for race relations on other issues which are still deeply contentious, such as busing or affirmative action, this can be counterproductive for progressive politics as it stimulated those with vested interests to defend them.

Race Relations and Internormativity

My purpose in referring to both top-down and bottom-up analyses of constitu­tional litigation is not to contribute to the methodological debate which McCann highlights. Rather, my argument is that the cumulative message^[460] of these studies validates the theoretical stance of external legal pluralism in the concrete setting of constitutional adjudication. To the extent that they under­line the limited effect of constitutional law in procuring progressive social change, either directly or indirectly, they confirm that the former does not exist in a binary relationship with the subjects it seeks to command, but is located in a socially mediated world which necessarily attenuates its effectiveness. Thus, these studies show that the field of race relations is marked by internormativity, where, for example, the more powerful legal norms appear to be those emanat­ing from the workplace, whether in opening up scope for black employment in the 1960s,^[461] or later resisting attempts to place blacks on a more substantively equal footing. Also, where equality-enhancing measures prevail, this can indi­cate that other parts of state law, such as executive action, are more effective than constitutional adjudication. Moreover, the most deep-seated influences on conduct may not be attributable to any immediate agency, but are found in ‘invisible background norms’^[462] of entrenched societal attitudes, which condi­tion how normative relationships are structured and expressed. In other words, the empirical studies of litigation in the field of race and civil rights question the adequacy of a constitutional knowledge based in the linear assumptions of the command model of law. In the remainder of this chapter, I put these assump­tions further to the test by considering two other important areas where the instrumental assumption of constitutional law remains strong, viz, abortion and freedom of expression.