Joel B. Grossman

The Supreme Court and Social Change: A Preliminary Inquiry

Although it is frequently the subject of scholarly and political discussions, there is surprisingly little empirical evidence available to support assertions made about the Supreme Court’s ability to influence social change. With some exceptions, the Supreme Court does not openly discuss this question in its written opinions. However, it is difficult to imagine that the justices are not concerned with the impact of their decisions. More likely they feel restrained by the limits of their role to discussing only the legal rights of the parties to each case. But it cannot be far from their minds and occasionally their concerns reach the surface. One reason why the Court’s effectiveness as an agent of social change is not much discussed by the justices is that they operate under a set of assumptions which renders such discussion unnecessary. For official purposes at least, the justices tend to assume that once the nation’s highest court has made a decision there will be ready and willing compliance from those to whom the decision is directed. But this overlooks the probability that most social changes occur as the incremental result of multi-institutional and societal forces rather than as a direct result of a particular Supreme Court decision or set of decisions. It also overlooks the built-in opportunities for noncompliance and evasion which characterize the American judicial bureaucracy. The Supreme Court rarely has either the first or last word on a subject. It

Liberalism, Law, and Social Change A Preface

ion. On the whole, pluralist liberals such as Dahl see elites as the managers and initiators of controlled change, while at the same time promoting stability and system maintenance and ensuring justice and individual rights. Citizens play the more passive role of legitimizing or rejecting elite policies and policy makers. Critics of pluralism such as Bachrach or New Left participatory democrats assign a more active and creative role to citizens, although the precise manner in which this could be done is often unclear. But certainly there would be a reverse of the pluralist emphasis on the needs and stability of the system. Furthermore it could no longer be assumed that resolution of conflict would automatically result in consensus or goal achievement. The real pressures for change would come from popularly based social movements. Change would come from