courts and social change fall 2011 – lstu e-107 dr. akiba j. covitz associate dean harvard law...

COURTS AND SOCIAL CHANGEFall 2011 – LSTU E-107

Dr. Akiba J. Covitz

Associate DeanHarvard Law School

CLASS 6October 20, 2011

Harvard LSTU E-107 - Fall '11 Class 6 - © Akiba J. Covitz 2011

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Move to Chapter 9:Appellate Courts: Policy and Impact

• Have been focused on process in Ch. 8; now move to policy and impact

• Appellate court opinions have 2 key components

1. How lower courts treated the parties

2. The appellate court’s judgment about how the principles of law as the appellate courts sees them are applicable to that case– It is in this second role that appellate courts have a

public policy impact


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Chapter 9:Appellate Courts: Policy and Impact

• Ideological patterns in appellate court policy

– Republican v. Democrat?

– Liberal v. Conservative?

– Appellate courts have been “conservative” for much of US history• Appointees are white and rich• Favor their self-interest


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• Ideological patterns in appellate court policy

– Appellate courts have been “conservative” for much of US history

• Appointees are white and rich• Favor their self-interest• The best lawyers went to work for big companies;

– Brandeis changes• Really changes with New Deal (“do good and do well”)• Consolidated in 1960s and early 70s (yearbook)• Some clawing back in early 70s

– Bork, Pollak, and YLS– Nixon’s appointees


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• What is “judicial activism”?– Courts do make public policy– But appellate courts have the choice to act

or not to act– Basic definition: intervention into policies

made by the other branches– Striking down statutes as unconstitutional – They can give – or not give – very detailed

instructions to other branches


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• What is “judicial activism”?– How to measure how activist a court is:

• How many laws a court determines to be unconstitutional?• Going beyond what is needed to settle a case (Dred S.)?• The numbers of laws declared un-con-al has increased in

recent years (but still a tiny fraction of total laws passed) • Why more than in the past?• “Initiative” process• Circular: greater role for courts → society responds →

more cases come to courts → better briefs → more certs granted

• More gov’t acts to be declared un-con-al


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• What is “judicial activism”?– How to measure how activist a court is:

• Was Roe v. Wade activist?• Brown v. Board?• Dred Scott?• Gay marriage decisions?• Affirmative action decisions?


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• The impact of appellate courts– Implementation

• An appellate court’s impact depends at least in part on responses to its decisions by lower courts and administrators

• A court rules on a legal issue, others must then apply that rule (police departments, school systems, executive branch agencies, Congress, state legislatures)

• Resistance?; prayer, Bibles in public schools• Brown?


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• Brown – Fifth Circuit Court of Appeals follows the Brown

decisions carefully– But district judges, who had to apply the law in specific

cases, often allowed delays on the ground– Many school administrators and other public officials

simply refused to follow the decision– “You’re not the boss of me”


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• Brown II – “with All deliberate speed”– Result: public schools in the Deep South remained almost as

segregated in 1964 as they were 10 years earlier– It was only after Congress and the Executive Branch

intervened, through military means and by providing financial assistance, that desegregation began

– In border states, school districts gradually desegregated– Resistance continued in the south into the 70s and 80s

» Narrowest possible compliance– School districts in the north generally follow Brown and the

courts


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• The sanctions courts can impose– Weak (no army)– SCOTUS cannot fire a district judge who

refuses to follow its decisions– But the higher courts can continue to

reverse lower court rulings– Judges can be disobedient and not then be

whacked on the nose– Case has to be appealed to be reviewed


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• The sanctions courts can impose– For school officials, the biggest concern is lawsuits

• But in desegregation, local racist parents who happened to be lawyers often offered services free of charge

– Cops not always impacted by court’s anger• Police not worried about convictions• More worried about arrests• Leave convictions to prosecutors

– Contempt of court for officials– Monetary penalties rare


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• Responses by the legislative and executive branches to appellate decisions

– They can often just change the law being interpreted

– “Statutory decisions” by courts (decisions interpreting statutes)

– Congress overturns, overrides fairly often– Courts often invite legislatures to override their

decisions– “This is what the law says, we must interpret it as

follows, so change the law and we’ll change our ruling”


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• Responding to constitutional interpretation is much harder

• Constitutions are difficult to amend, even on the state level

– At the state level, this usually involves a proposal by the legislature, and then ratification by the people;

– At the federal level, classic example is the 26th Amendment• SCOTUS nullifies federal statute lowering voting age

across the country; has local and state impact• They say that in order to mandate that the states lower

their voting ages, the Constitution needs to be amended • It’s amended


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• Influencing the implementation process– Congress can provide incentives and

penalties to implementation of appellate court decisions

– In 1964, Congress gives LBJ the power to implement Brown, the power to withhold federal funds for lack of compliance

– Desegregation then finally really begins


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• Attacking the courts as institutions– FDR and court-packing in 1937– Remove jurisdiction

• Only once has Congress limited the Court’s jurisdiction, in1869 and in relation to Reconstruction

• Few if any of these attempts to attack the Court have been adopted (usually House adopts, Senate does not)

• SCOTUS generally recognizes the pressure and backs off • Lots of public attacks by elected officials, interest groups• In the 19th century, state legislatures sometimes respond

to unfavorable decisions by cutting judge’s salaries to 25 cents a year or disbanding and then creating entirely new courts


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• The Impact of Courts on Society– Finally here!– Can they have an impact? How? Should they try

to?– Those who conclude that the courts exert

significance influence over society are making two causal arguments:

1. Courts directly impact behavior by changing people’s incentives– Change personal injury laws → leads to more suits → forces

manufacturers to be more careful about what they produce2. Second, less direct link → courts trigger broader social

change by influencing people’s thinking and the structures in which they operate (Brown and MLK?)– Harder to demonstrate this


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• The Impact of Courts on Society– Policymakers in the other branches also act

on issues that courts address• Congress, LBJ need to enforce Brown• They both agree it is worth enforcing• But what would there have been to enforce

without Brown? • Could the other branches have acted in the same

direction as Brown, without the SCOTUS acting first?


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• The impact of courts on societyThurgood Marshall in 1967:“The Negro who was once enslaved by the law became emancipated by it, and is achieving equality through it. To be sure law is often a response to social change; but . . . it can also change social patterns. Provided it is adequately enforced, law can change things for the better, moreover it can change the hearts of men, for law has an educational function also.”

• King in the 1957:“The habits if not the hearts of people have been and are being altered every day. Judicial decrees may not change the heart, but they can restrain the heartless.”


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• The impact that courts do have– Non-trivial effects on crime/criminal justice– Status of women– Court action can create symbolic foci

• Roe v. Wade becomes a rallying point, for pro and anti – Status of African Americans

• Some argue that the courts have had little effect in this area

• Courts often initiated the actions• But they only became effective when the other branches

acted• Courts certainly not the only actor

– WWII » Blacks and women (military service)» Cold War


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• The impact that courts do have– Conclusions (Baum’s):

• SCOTUS’s decisions were neither necessary to sustain the civil rights movement nor sufficient to protect it from harassment

• But they likely strengthened the movement significantly • The courts likely have been important contributors to social

change in this area and in other areas• Although court opinions would have little impact in

themselves, serve to bolster and stimulate other forces for change

• The courts can make a difference in American society• Never lose sight of the fact that courts are closely linked

with the rest of government and society • “Umpires” (CJ Roberts)


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Hall & McGuire:Chapters 1 to 3

• Presentations

• Discussion


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For Next ClassOctober 27:

Assignment :

Hall & McGuire, Chapters 4 through 12

courts and social change fall 2011 – lstu e-107 dr. akiba j. covitz associate dean harvard law...

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