The When, Why, and How of Legal Mobilization

By David Pettinicchio

Social movement scholars have increasingly broadened their view of the role of social movements vis-à-vis institutions and political outcomes– that is, beyond using direct action to challenge authority. The fact that you are reading a short essay about social movements and the courts is a testament to that. As movements became increasingly viewed as part of “everyday politics” and the use of institutionalized tactics more common, not surprisingly, legal mobilization emerged as an area of interest among political sociologists and social movement scholars.

Paul Burstein (1991) early on treated legal mobilization explicitly as a social movement tactic and showed not only that social movements and social movement organizations (SMOs) “mobilize the law” but that they also think they can be successful at doing so. Linking social movements to the courts raises three main questions: when, why, and how do social movements use the courts? This is no different than asking when, why, and how movements choose disruption, or choose to testify before congressional committees. Presumably, one could apply existing social movement theories, like for instance, political process and political opportunity, to explain why legal mobilization is seen as a viable movement strategy or tactic. In fact, I would argue that the relationship between movements and the courts is no different than the relationship between movements and the legislature. In both cases, movements seek to influence the agenda under a set of constraints and typically, movements have much less influence on decision making than they do on agenda setting.

Courts have to be perceived as venues for social movement activity which means that relevant and important cases have to be on the docket (for instance, there are two same-sex marriage cases on the 2012-2013 docket).  Just like legislatures, courts do not hear cases across all issues equally over time. In other words, like the policy agenda, the judicial agenda also has a limited capacity. This is important for challengers because if the courts are not hearing relevant cases, there is little opportunity to access them. Institutional changes have, in part, made the courts a venue for movement activism. In its early days, the Supreme Court hardly dealt with social/civil issues (see Pacelle 2001) and until 1925, was required to deal with all cases sent to it (i.e., justices could not select). The rapid increase in the proportion of civil cases on the Court’s agenda is in large part attributable to the policies enacted by Congress in the 1950s and 1960s (see Casper and Posner 1974). A basic analysis using court data from the Policy Agendas Project shows that issues have a varying presence on the Supreme Court agenda (see Figure 1). Indeed, Caldeira and Wright (1988) use the term “agenda setting” to refer to the processes by which the Supreme Court sets the docket much in the way Baumgartner and Jones (1993) use it to refer to issue attention in Congress. This suggests that in order for movements to use the courts, opportunities must be available and these opportunities are often shaped by broader political and institutional factors.

Legislative activity can create an opportunity for legal mobilization. The courts become particularly relevant when petitioners have grounds to file suit. This typically means that there are policies or regulations to mobilize around and a mechanism by which to do so (such as the Equal Employment Opportunity Commission). For instance, the first court case heard based on Section 504 (the anti-discrimination provision of the Rehabilitation Act) was in 1979 (Southeastern Community College v. Davis). Although the policy was passed in 1973, antidiscrimination regulations were only published in 1977 which postponed the use of the courts.

Movements can also seek to influence the judicial agenda much like they would the policy agenda.  They typically do this by filing amicus curiae briefs (i.e., friends of the court) on behalf of individuals or groups. Indeed, legal scholars (for instance, Caldeira et al 1999) have shown that amicus curiae briefs are important predictors of certiorari grants (i.e., writ to review lower court rulings). Perhaps for this reason, interest and movement organizations have increasingly used amicus briefs. According to Rustad and Koenig (1993), friends of the court have become “lobbyists of the court.” Work in social movements has also shown the importance of amicus curiae briefs – for instance Woliver’s (2002) work on pro-choice and pro-life groups, and Daum’s (2009) work on gay and lesbian rights organizations.

Recently, legal scholars (see for instance, Salzman et al 2011) have suggested that mobilizing the law can have long lasting effects on policy. Amicus curiae briefs play an important role in providing information to justices about the issues at hand and they can also signal importance about the case. Thus, SMOs might be particularly influential when there is very little information or decision uncertainty about an issue or case. But, like any institutional target, there are constraints placed on the ability of “outsiders” to influence decision-making. Movement scholars recently noted that movements are more likely to influence the congressional agenda than actual policy decisions (see for instance, Johnson, Agnone and McCarthy 2010). Similarly, we might assume that movements play an important role in gatekeeping or judicial agenda setting (as they can be successful in getting the case heard). However, it is unclear how movements might matter in “resolving the merits” – that is, in judicial decision-making. Segal and colleagues (2005) list a host of internal, case and political factors that shape decisions. According to the extra-legal model of decision-making, factors like justice preferences and political ideology can also shape the outcome of cases.

Presumably, whether courts are seen as allies or antagonists on issues can also determine whether movements access the courts. For instance, First Nations leaders and activists in the Idle No More movement, after seemingly ineffective talks with the government, have recently decided to take their case against a proposed bill that would infringe on treaty rights to the Canadian Supreme Court. Why? Because the Supreme Court almost always rules  favorably on treaty rights cases. But, courts are not always allies of social movements. In the U.S., Federal courts have been largely sympathetic on issues of racial and gender employment discrimination. On the other hand, courts, namely the Supreme Court, have not been champions of disability rights. Courts, not the legislature, have been left with defining, interpreting and enforcing antidiscrimination provisions following the Americans with Disabilities Act (ADA). This has not produced positive outcomes. A series of cases in the decades following the ADA have served to undermine the impact of the legislation – hence the use of the term “judicial resistance.” The Court’s interpretation of the ADA has been referred to as “illogical,” “hyper-technical,” and a “Catch-22” (O’Brien 2001). Courts have seldom ruled against employers and companies, and in the few cases that have been decided on reasonable accommodation, courts have sided with employers.

A quick look at the Supreme Court Database (SCDB) shows important differences in rights/employment discrimination cases between disability and other groups.  In cases involving sex, race, national origin, age, working conditions, and religion, there is much more variation in the kinds of petitioners and respondents (i.e., individuals, government agencies, employers, etc.). In these cases, a fair number of petitioners are in fact women, or members of a minority group. However, in the case of disability, only about 10 percent of petitioners are individuals with disabilities versus the 66 percent that are respondents. About two-thirds of cases involving discrimination based on sex, race, national origin, age, working conditions, religion and disability, reverse, remand, or vacate lower court decisions. While this may not seem meaningful, the nature of Supreme Court decisions regarding reversals is quite telling.  More than two-thirds (69 percent) of disability rights cases reversing, remanding, or vacating lower court decisions between 1946 and 2010 are coded as “conservative” by SCDB – that is, the Supreme Court decision is not pro-civil rights claimant. That’s about 20 percent more than race, age, and religion cases, and  35 percent more than sex discrimination cases. What this seems to suggest is that in disability cases, where respondents are largely government officials or offices, or employers or corporations seeking to overturn a typically more liberal lower court decision, they appear to be more successful at doing so than in sex or race discrimination cases.

Given the Supreme Court’s 2012-2013 docket including cases on affirmative action, same-sex marriage, voting rights, and abortion rights, I’d like to conclude with two take away points. First, the use of the courts by social movements is shaped by the same institutional, organizational, resource, and cultural factors that help determine the availability of other tactics and strategies. Second, the nature of the relationship between issues and the courts varies and changes over time. Thus, in asking about the relationship between movements and the courts, it is important to know about the role of the courts in defining issues. Sometimes, the courts can be sympathetic, while at other times, they can serve as obstacles to social change.

References

Baumgartner, Frank R. and Bryan D. Jones. 1993. Agenda and Instability in American Politics. Chicago: University of Chicago Press.

Burstein, Paul. 1991. “Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity.” American Journal of       Sociology 96:1201-1225.

Caldeira, Gregory A. and  John R. Wright. 1988. “Organized Interests and Agenda Setting in the U.S. Supreme Court. The American Political Science Review 82:1109-1127.

Caldeira, Gregory A., John R. Wright and Christopher Zorn. 1999. “Sophisticated Voting and Gatekeeping in the Supreme Court.” Journal of Law, Economics and Organization 15: 549-572.

Casper, Gerhard and Richard A. Posner. 1974. “A Study of the Supreme Court’s Caseload.” Journal of Legal Studies 3:339-375.

Daum, Courtney. 2009. “Declining Under the Influence? The ‘One Hit Wonders’ and Organized-Interest Participation in U.S. Supreme Court Gay Rights Litigation. Pp. 76-102, In Scott Barclay, Mary Bernstein and Anna-Maria Marshall (eds.) Queer Mobilizations: LGBT Activists Confront the Law. New York: New York University Press.

Johnson, Erik, Jon Agnone and John D. McCarthy. 2010. “Movement Organizations, Synergistic Tactics, and Environmental Public Policy.” Social Forces 88:2267-2292.

O’Brien, Ruth. 2001. Crippled Justice: The History of Modern Disability Policy in the Workplace. Chicago: University of Chicago Press.

Pacelle, Richard. 2001. The Role of the Supreme Court on American Politics: The Least Dangerous Branch? Boulder: Westview Press.

Rustad, Michael and Thomas Koenig. 1993. “The Supreme Court and junk social science: Selective distortion in amicus briefs. North Carolina Law Review 72:91-162.

Segal, Jeffrey A., Harold J. Spaeth, and Sara C. Benesh. 2005. The Supreme Court in the American Legal System. New York: Cambridge University Press.

Salzman, Ryan, Christopher J. Williams, and Bryan T. Calvin. “The Determinants of the Number of Amicus Briefs Filed Before the U.S. Supreme Court, 1953-2001.” The Justice System Journal 32:293-313.

Woliver, Laura R. 2002. The Political Geographies of Pregnancy.  Urbana and Chicago: University of Illinois Press.