On the surface, it seems that determining how much power courts have would be a simple task. However, history has proven this to be false. The courts have been viewed in many different ways through out the history of our country. There are three common views of court power that are important for modern scholars of the court system. Those who believe courts have little power to cause social change are said to adhere to the Constrained Court view. Those who believe courts have a great deal of power to cause social change are said to adhere to the Dynamic Court view. The final, and youngest, take on court power combines aspects of the Constrained and Dynamic views into what I shall call the Condition Dependent Court view of power. This view sees that there are certain conditions which allow the court to cause social change.
What kind of change are we talking about here? The Supreme Court examines many different kinds of cases, so determining which cases to look at is important. There is little, if any, value in examining noncontroversial cases. If a case is noncontroversial, there is no reason to expect a reaction of any kind by those outside the court besides the parties directly effected. Thus, it is logical to examine cases which are highly controversial. One of the most well known Supreme Court decisions is Miranda v. Arizona (1966). This decision has been the subject of many articles and books. It has also been popularized through various television shows involving police (Law & Order for example).
Not only is the Miranda decision well known, it has also been highly controversial. “In its immediate aftermath, the Miranda opinion was assailed by police, prosecutors, politicians, and the media” (Leo 622). Given the controversy, amount of literature on the case, and public knowledge of this case, I feel it is a good example for examining the ability of the Supreme Court to cause social change.
Gerald N. Rosenberg discusses the three views on the power of courts to cause social change, as well as the Miranda decision, in his popular and provoking book, The Hollow Hope: Can Courts Bring About Social Change? Rosenberg examines the underlying beliefs and theories for each of the views, as well as the problems one can encounter with both the constrained and dynamic views of the courts. It is from these problems that Rosenberg creates the Condition Dependent view of court power. To understand Rosenberg’s argument about the power of courts to cause change, it is important to understand the two other models of court power which Rosenberg synthesizes.
Those who advocate the Constrained Court view believe that there are three constraints which prevent courts from causing social change. First, “[t]he bounded nature of constitutional rights prevents courts from hearing or effectively acting on many significant social reform claims, and lessens the changes of popular mobilization” (Rosenberg 13). This restraint is caused by...