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H, Rights Consciousness in Contemporary Society

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Rights Consciousness in Contemporary Society

In the second half of the twentieth century Americans became very conscious of their “rights,” Leading to much talk about both gaining rights and protecting existing rights. The current (p. 459) ethos holds that there should be access to law to assert claims about those rights, especially through the Supreme Court. Although judicial rulings have been only one factor in the development of this new “rights consciousness,” critics complain that decisions by the courts over the past several decades have contributed to a litigation explosion and “hyperlexis”—that is, excessive law. Whether we have in fact become “overlawyered” and “overjudged,” the fact remains that the Supreme Court has been at the heart of the growth of the rights consciousness.

Rights Consciousness.

The general awareness of rights to be claimed or asserted against others, particularly the government, is what we mean by “rights consciousness.” People are certainly aware that they possess “rights” that the government and other citizens should not abridge. They may express their belief in these rights at a high level of generality and often misunderstand the content of the rights they actually have, overestimating their scope. But even if members of the public do not understand the precise content and scope of their rights, they have become more willing to seek recognition and expansion of those rights and to assert an entitlement to them.

A general sense of awareness of the direction in which the Supreme Court is heading in expanding or contracting rights may inspire greater or lesser optimism about these rights. Yet regardless of whether members of the public understand the Supreme Court’s message, the *lower federal courts are quite likely to hear the Court’s signals encouraging them to take positions supportive of rights claims; thus the lower courts, too, play a role in the content of “rights consciousness.”

Rights consciousness may have either a general or a specific focus, such as the right against being compelled to incriminate oneself (see self-incrimination). Belief in another specific right, the right to *counsel, led one convicted felon, Clarence Gideon, to appeal his conviction, and that appeal was the Supreme Court’s vehicle for enunciating, in *Gideon v. Wainwright (1963), an indigent’s right to an attorney at felony trials. A general right such as the right to *privacy first articulated by the Supreme Court in the *contraception case of *Griswold v. Connecticut (1965) and central to consideration of the defeated nomination of Judge Robert *Bork to the Supreme Court, may find applications far beyond the case in which it was originally identified. The right to privacy, for example, has played a part in cases dealing with a woman’s right to choose *abortion (*Roe v. Wade, 1973) and consenting adults’ protection against arrest and prosecution under state sodomy laws (*Bowers v. Hardwick, 1986; *Lawrence v.Texas, 2003; see also homosexuality).

Another general right is the right to be treated fairly. Because so many rights are related to the procedures by which life, liberty, or property are obtained or removed, the right to *due process of law is among those about which people often are conscious. Indeed, although modified by later rulings in which the justices were deferential to law enforcement agencies and particularly to prison administrators, a “due process revolution,” including rulings requiring hearings before termination of welfare benefits (*Goldberg v. Kelly, 1970) and before suspending or expelling students from school for disciplinary reasons (Goss v. Lopez, 1975), led people to be more willing to challenge treatment by executive agencies and to demand more protections from abuse by bureaucrats.

*Due process rights are but one cluster of rights the Supreme Court has articulated. Two others are to be found in the *First Amendment: freedom of expression, including freedom of *speech and the press, freedom to *petition, and the corollary right to free *assembly and association; and rights associated with *religion, specifically the freedom to practice one’s religion and the right not to have another religion imposed on one (or “established” by the government). Rights of criminal defendants constitute another major cluster, which includes pretrial rights, such as the protection against improper searches and against being forced to incriminate oneself to the police, and rights at trial, such as the right to have an attorney and the right to a *speedy, public trial, with a properly selected jury (see trial by jury). There is also a cluster of *citizenship rights, such as the right to *vote and a general expectation that the government will treat one without regard to one’s race, sex, religion, or national origin.

One can distinguish between rights clearly stated in the Constitution, such as freedom of speech and the press and the right to the free exercise of religion, and “new,” or derivative, rights recognized or created by the Supreme Court. Among the latter are the right of association, inferred from the First Amendment’s freedom of speech guarantee, and the right of privacy, originally derived from the “penumbras” of specifically named portions of the *Bill of Rights and from the *Ninth Amendment (which states that nonenumerated rights may exist) but now based in the liberty protected by the Due Process Clause of the *Fourteenth Amendment.

Individual versus Group Rights.

Debate about some of these rights has been with us for many decades; issues of freedom of speech and religion have been prominent throughout the nation’s history. Controversy about *slavery brought about the *Civil War, and issues of racial equality again came to the fore of the nation’s agenda in the (p. 460) mid-twentieth century, leading people to become conscious not only of individual rights but also far more conscious of group rights (see race and racism).

Concern about the rights of *labor unions to organize workers had brought attention to the constitutional right of association, but until the *civil rights movement of the 1950s and 1960s, people still tended to think of rights primarily in terms of the individual. Particularly after the Court’s landmark rulings mandating equal treatment regardless of race in schools and public facilities, the need to consider remedies for *segregation and racial discrimination (and whether those remedies could be race-conscious) focused attention more on an individual’s position as a member of a group—and thus on group rights. This shift in attention was part of a change in concern from rights as protection against the government to rights as a way of changing social relations; the emphasis on greater equality—not only on “equality before the law” or “equality of opportunity” but specifically on “equality of results”—has clearly done just that.

The extension of civil-rights consciousness from African-Americans to other groups—women, Latinos, the disabled, and gay men and lesbians—also increased group rights concerns. Attention to group matters was furthered by recognition of institutional racism and sexism, that is, the notion that discrimination is not only a matter of overt discriminatory acts against individuals but includes neutral-seeming mechanisms that are discriminatory in their effects on whole categories of people. When people of a specific racial or gender grouping focused on their common attributes or background, as in the “consciousness-raising” groups in the women’s movement, it was only a short step to raise the consciousness of others both inside the grouping (for example, other women) or outside it. Similarly, if welfare recipients looked at their economic situation as resulting from structural conditions they had in common, they would be more likely to be conscious of their rights and to assert them (as was done by the Welfare Rights Organization) than to attribute their indigency to personal failure.

The Supreme Court has made it difficult to maintain this group emphasis. Particularly in recent years, the Court has reinforced an individualistic focus through adoption of a “perpetrator perspective” in which, before someone can be held liable for violating an individual’s rights, that person (or entity) must be found to have intended such a violation; examples can be found in cases on *employment discrimination (*Washington v. Davis, 1976) and voting rights (*Mobile v. Bolden, 1980). Adoption of a “victim perspective” in discrimination cases, with consideration given to the institutional or cultural disadvantages faced by all those in a discriminated-against grouping, would not only lead more readily to adoption of race- or sex-conscious remedies but would also reinforce a group-rights consciousness.

Seeking Rights.

*Rights consciousness may be accompanied by action to achieve the rights thought to exist. Although appeals for legislative change and other types of political activism have been more frequently employed in recent years in the pursuit of rights, litigation has often been used in the effort to secure statements of these rights and their effective application. Because Supreme Court rulings supportive of rights provide evidence of litigation’s effectiveness, they can be said to have created “litigation consciousness” as much as rights consciousness.

Trying to get the Supreme Court to pay greater heed to claims that rights should be enforced, groups have long used litigation to press their rights agendas; from time to time, those efforts have led to favorable results. The *American Civil Liberties Union (ACLU) has often raised freedom of expression and church-state issues and criminal procedure questions. The *NAACP *Legal Defense Fund (LDF) and other groups based on the LDF model, such as the Mexican-American Legal Defense Fund (MALDEF), have pressed for elimination of segregation and discrimination in *housing, *education, jobs, and voting. The LDF also led the battle in the courts against the death penalty (see capital punishment), and comparable organizations in the women’s movement have focused on abortion or reproductive rights. Conservatives, too, have developed such litigating entities to make their views of rights heard, and these groups have become prominent on matters like affirmative action and church-state relations. This growth in litigation capacity and greater attention to seeking goals through litigation has enhanced the Supreme Court’s ability to exercise leadership with respect to rights, because better-developed legal arguments, expanding the boundaries of existing rights doctrine, are presented to the justices. With that ammunition and their discretion to control the Court’s docket, the justices can craft the judicial opinions necessary to express support for rights.

The Supreme Court’s Roles.

It is difficult to determine whether the Supreme Court’s rulings after 1953, when Earl *Warren became chief justice, were more the cause of the growing consciousness of rights or the result of a preexisting, underlying societal rights consciousness. To say that the Court has created rights consciousness is implicitly to adopt the general view that the Warren Court led public opinion, influencing rights consciousness, and at times moving that consciousness beyond (p. 461) where it had been. It is important not to ignore the fact that the Warren Court also responded to demands made on it by those already concerned about rights.

One can certainly find instances where the Court, instead of following, led the way. In graduate-education cases before *Brown v. Board of Education (1954)—such as *Sweatt v. Painter (1950)—the Court sent a signal to the NAACP that an outright attack on the *separate but equal doctrine was in order. The Brown litigation was certainly responsive to that signal. The Warren Court’s criminal procedure cases also provide examples of the Court moving farther than litigants sought—in fact, most such cases were brought to the Court not by groups pursuing broad rights agendas but by defense lawyers seeking only to reverse their clients’ criminal convictions. The *Mapp v. Ohio (1961) *exclusionary rule case came to the Court as an *obscenity case, but the Court transformed it into a vehicle to apply the exclusionary rule to the states.

When its rulings reaffirm rights previously recognized or recognize new rights, particularly those of underrepresented minorities, the Court can be said to be fulfilling one of its roles in American democracy—countering majoritarian tendencies by upholding minority rights. The Court can, however, play other, somewhat more limited roles with respect to rights. One is the role of legitimator, a role the Court played in the *Civil Rights Act of 1964 (*Heart of Atlanta Motel v. United States, 1964) and the *Voting Rights Act of 1965 (*South Carolina v. Katzenbach, 1966); in those cases it upheld Congress’s actions and generally made clear that it would defer to congressional leadership in civil rights matters.

The Court has also legitimated others’ efforts to gain and protect rights. For example, it invalidated southern efforts after Brown v. Board of Education to immobilize the NAACP through state requirements that the organization reveal its membership lists (*NAACP v. Alabama ex rel., 1956) and through charges of barratry leveled against the NAACP because it advised people of their constitutional rights to equal treatment (*NAACP v. Button, 1963). The Court’s revival of the *Reconstruction-era civil rights statutes (as in United States v. *Guest, 1966; United States v. Price, 1966; and *Jones v. Alfred H. Mayer Co., 1968) also facilitated private citizens’ complaints about deprivations of their rights.

One does not have to look far to find instances in which the Court’s reaction to claims of rights has reflected the larger society’s concerns. Given Americans’ inclination, noted by Alexis de Tocqueville, to transform most social and economic and political problems into legal ones, the Court’s agenda of course reflects the societal agenda. Starting in the late nineteenth century, imperatives of economic growth were translated into “liberty of contract” doctrine, that is, freedom from government regulation of business, including its relations with its employees; this helped create the core of the Court’s agenda through the mid-1930s (see contract, freedom of).

After *World War II, a new elite consensus on the economic and social-welfare functions of government, coupled with the desire to portray the virtues of “democracy” in its battle against *communism, shifted the agenda of rights issues to matters such as free speech, although, in another reflection of elite concerns, the amount of speech allowed by the Supreme Court was far from unlimited. Brown v. Board of Education, although portrayed at the time as radical and often as an instance in which the court led public opinion, is another example of the justices lending their authority to a preexisting social movement and responding to concerns of political elites. Elites, more liberal than the general public, felt that after the World War II fight against Nazi ideology, segregated education was inappropriate and made the United States “look bad” in the postwar competition with the Soviet Union. Thus Brown was not only an effort by the Court to deal with the plight of African-American students and to raise the nation’s consciousness of racial discrimination but also a “cold war imperative.”

The Warren Court, in turning its attention to rights, adopted an increasingly liberal rights agenda including freedom of speech and the press, separation of church and state, equality for minorities, the rights of criminal defendants, and more recently, *gender equality. However, after Barry Goldwater, George Wallace, and Richard *Nixon attacked the Warren Court’s criminal-procedure decisions in their “law and order” presidential campaigns, the liberal rights agenda was displaced by a more conservative one, which had several components: opposition to continuing school *desegregation remedies such as busing; opposition to abortion; support of the “rights of whites” and opposition to *affirmative action; renewed interest in the rights of *property, which could not be taken without *just compensation; greater concern for the rights of those who practice religion; and, in criminal matters, increased attention to the interests of law enforcement and the victims of crime, and support for the death penalty. Rulings on this agenda by the Burger Court and then the Rehnquist Court illustrate both that newly appointed justices reflect public opinion and that the justices’ response to public opinion may move the Court away from protection for rights claimed by liberals and toward deference to the majority. We see this in the Court’s early-1970s decisions limiting the (p. 462) rights of criminal defendants, its late-1980s rulings responsive to complaints of disgruntled white males or white females that affirmative action programs produce “innocent” white victims of “reverse discrimination,” particularly when layoffs of whites result, and its rulings opposing the use of race as a consideration in creating new legislative districts (Shaw v. Reno, 1993).

The Court’s Attention to Rights.

Contemporary rights consciousness can be traced directly to the post–World War II period, but it also has an older history. This older past is rooted in a set of rights, asserted primarily by business interests in the late nineteenth century, relating to freedom from government regulation. A more immediate prelude to postwar rights consciousness can be seen in the Court’s *World War II battles over the rights of Jehovah’s Witnesses to distribute their literature and to refuse to salute the flag and in negative reaction to the Court’s upholding the relocation of Japanese-Americans (*Korematsu v. United States, 1944). The genesis of the Court’s more recent attention to rights can be seen in Justice Harlan *Stone’s *Footnote Four in the Carolene Products case (1938), indicating that the Court would look with *stricter scrutiny at statutes affecting political rights and the rights of insular minorities.

After the early years of the cold war, the Warren Court not only gave greater attention to rights claims but also ultimately sustained a high proportion of those claims across a wide range of subjects. Along with the *school prayer cases and the *one person, one vote *reapportionment cases of the early 1960s came the “revolution” in which criminal procedure was nationalized. The specific protections of the *Fourth, *Fifth, *Sixth, and *Eighth Amendments were extended to state criminal defendants and increased due process was required in dealing with criminal defendants. The Court began this “revolution” by outlawing use of improperly seized evidence in state criminal trials (*Mapp v. Ohio, 1961). It continued by requiring appointed counsel for indigents at felony trials (*Gideon v. Wainwright, 1963), protecting against improperly obtained confessions in the period before trial (*Escobedo v. Illinois, 1964; *Miranda v. Arizona, 1966), and extending the right to a jury trial to the states (*Duncan v. Louisiana, 1968). The effect of a set of rulings was particularly evident in these cases: whatever the impact of these rulings might have been individually, their cumulative effect was a generally heightened rights consciousness. To be sure, Mapp by itself would have affected our collective consciousness, but the steady drumbeat of decisions over several years had a magnified effect.

The Burger Court continued to devote much of its docket to rights issues and initially supported some new claims of rights—for women (including *abortion), for prisoners disciplined for violating regulations, and for mental patients, in the context of involuntary civil commitment. Contrary to expectations, the Burger Court did not directly overrule even the most criticized of the Warren Court criminal procedure rulings—Miranda and Mapp. However, the new majority did refuse to extend those rulings and undercut advances in other areas, such as rights for welfare beneficiaries.

The Burger Court’s record of support for rights was nonetheless higher than the Court’s record in the pre–Warren Court period. This is particularly evident if one recognizes that rights claims made to the Burger Court were more difficult than those presented earlier. General claims, such as whether the criminal procedure provisions of the *Bill of Rights should be extended to the states, had been answered by the Warren Court. Succeeding rights claims, pressing well beyond liberal Warren Court rulings, were less likely to be upheld. However, because the Burger Court chose to operate within the Warren Court’s precedents, the result was a more generous approach to rights than an earlier Court would have demonstrated. As time passed, however, the Rehnquist Court proved itself less willing to extend rights and more willing to limit them, although there still were surprises when rights claims were upheld. Limits on rights were particularly clear in criminal procedure, especially in death penalty cases, where the Court made it more difficult for defendants to test their convictions and death sentences through *habeas corpus.

The modern Supreme Court’s sustained attention to rights has made it easy to assume that the Court has always paid considerable attention to rights issues. As is clear both from history and from the current mobilization of a new conservative majority, however, it has only been in this century that the Supreme Court has given attention to civil liberties and civil rights.

The Court can signal that greater attention should be paid to rights, but it can also convey a contrary message, so situations in which the Court was especially unheedful of rights must also be taken into account. Patriotism during the early part of World War II led the Court initially to uphold a compulsory flag-salute for schoolchildren over the claims of religious minorities (*Minersville School District v. Gobitis, 1940), although it soon changed its mind (*West Virginia Board of Education v. Barnette, 1943). Concern for the success of the war effort led the court to ignore the racist motivations behind restrictions on the freedom of Japanese-Americans on the west coast when it upheld government actions in the *Hirabayashi (curfew) and Korematsu (relocation) cases in 1943 and 1944. Concern in the 1940s and 1950s over the presence of communists (p. 463) in government led to a growing indifference to government employees’ due process rights when their loyalty was challenged or they were thought to be security risks, and to communists’ free speech rights. The Court initially upheld loyalty-security programs for the most part, and upheld convictions for conspiring to teach the advocacy of overthrow of the government (*Dennis v. United States, 1951). When, in the mid-1950s, the Court began to criticize aspects of anticommunist efforts, congressional attacks on the Court led it to retreat. Many of these decisions were, however, eventually modified or overturned. In the late 1980s, concern about drugs likewise led to a diminished concern about search and seizure rights in criminal cases and about privacy rights in the context of employment.

The Court’s Impact on Rights Consciousness.

In the 1950s and early 1960s, the Court was “the only game in town” for the achievement of civil rights. The Warren Court’s actions, beginning with its outlawing of segregation in public education in Brown, placed rights on the national legal and political agenda, where they have remained ever since. Brown by itself, however, was not enough to establish a broad rights consciousness. It took the Warren Court’s unusually high support of rights claims in a multitude of areas to crystallize contemporary rights consciousness. Yet even if the Court had handed down no more *race relations rulings, Brown would have had a great effect on minorities’ consciousness of their rights. This was so because it discarded “separate but equal,” the constitutional basis for segregation created in *Plessy v. Ferguson (1896), leading people to assert their rights to the desegregated education to which they felt equal opportunity entitled them. This occurred despite the Court’s first calling for desegregation to proceed “with all deliberate speed” (Brown v. Board of Education II, 1955) and then disengaging itself from enforcement by deciding very few school desegregation cases until 1968, except when it intervened in cases of extreme resistance.

The Court did provide support for restaurant and library sit-ins and related demonstrations by accepting many cases and reversing many convictions on a variety of technical grounds (see sit-in demonstrations). By avoiding pronouncing major new doctrine, however, the Court did not provide much leadership on the question of access to public accommodations. Instead, Congress, responding to the sit-ins, passed the public accommodations provision (Title II) of the 1964 Civil Rights Act—which the Court then upheld in Heart of Atlanta Motel. Likewise, after striking down the *white primary (*Smith v. Allright, 1944), the Court did not directly promote the assertion of the right to vote without racial discrimination; it was Congress that responded to major events, such as the 1965 civil rights march from Selma to Montgomery, Alabama, by passing important new legislation. Here again the Court’s role was largely one of legitimation, when it affirmed Congress’s right to enact such legislation (*South Carolina v. Katzenbach, 1966). After Congress passed the Civil Rights Act of 1964 and *Voting Rights Act of 1965, the Court reentered the fray—but not as a leading actor, although it was still important when, as in Jones v. Mayer, it restored life to *Reconstruction-era civil rights laws as a weapon against discrimination in housing by private individuals.

That little immediate desegregation occurred in the deep South in response to Brown and that it did not take place until the other branches had acted, reflects the oft-noted phenomenon of “law in action” versus “law on the books.” Although civil rights activists undertook their more direct action in part because of Court-stimulated rights consciousness, they also took to the streets because many of them felt that litigation was taking too long to achieve rights. A widespread sense of injustice played a much larger role than specific Court rulings in stimulating effective opposition to racial discrimination. The recent retreats by a more conservative Court have led some to a different interpretation—that the Court is still contending with the legacy of slavery and is moving us back toward the pre-Brown situation, with minorities’ economic situation getting worse, not better.

Rights by Reaction.

Sometimes, the supposed beneficiaries of Supreme Court rulings granting rights have been prompted to develop rights consciousness by the negative reaction of opponents to these rulings. If a Court ruling upholding a claimed right is readily complied with by those who earlier interfered with the right, the consciousness of those who had gained the right might not be stimulated as much as if those who opposed the right continue in their obstruction. Conflict is an essential dynamic of change. Part of the rights consciousness deriving from Brown may have resulted from the South’s massive resistance to school desegregation. Likewise, the concerted efforts to overturn the school-prayer rulings created greater awareness of the rights involved in those rulings than if school officials had promptly stopped prayers from being recited in class. The strenuous, even apoplectic, reaction to rulings like Mapp and Miranda by the law enforcement community—often reflected in films and the media—also served to make people, both inside and outside that community, far more aware of the rulings than if there had been a quieter, even if disgruntled, response.

Consciousness of what might be called “rights in opposition” also can result from the Court’s (p. 464) actions. Race relations and abortion provide examples. Affirmative-action programs, along with judicially imposed race-conscious remedies for racial discrimination found to violate Titles VI and VII of the 1964 Civil Rights Act, led to disaffection by white males who felt entitled to positions or promotions gained by minorities or women. This disaffection, along with a more general fear of quotas, in turn led to increased consciousness of whites’ “rights” to equal treatment in employment, and to “reverse discrimination” lawsuits such as *Regents of University of California v. Bakke (1978) and, as the attack on affirmative action continued, *Grutter v. Bollinger (2003). Conversely, when the Court handed down rulings in 1989 limiting its own earlier job-discrimination rulings (*Ward’s Cove Packing Co. v. Atonio, 1989), there was renewed “rights consciousness” in the minority community, leading to efforts to pass additional civil rights statutes to overturn those decisions (see civil rights act of 1991).

Prior to *Roe v. Wade (1973), with opposition to abortion institutionalized in restrictive statutes, those opposing abortion did not need to be active. When Roe invalidated those laws, it changed the landscape of rights permanently, just as Brown did for racial equality. Roe prompted formation of the “right to life” movement by those opposed to abortion and galvanized those opposed to the Equal Rights Amendment. Each subsequent ruling striking down restrictions on abortion further stimulated anti-abortion activity, long before “pro-choice” elements organized effectively. When cases like *Webster v. Reproductive Health Services (1989) appeared to invite the states to impose greater limits on the right to an abortion, it stimulated pro-choice forces to direct political action to prevent such restrictions, thus illustrating that rights consciousness is formed not only by rulings sustaining rights but also by rulings that seem to withdraw them. Likewise, the Court in *Grove City College v. Bell (1984), which limited the reach of federal antidiscrimination rules applying to recipients of federal funds, stimulated renewed consideration of the rights to be enforced through this mechanism and ultimately led to enactment by Congress of the Civil Rights Restoration Act. The public may well react more negatively to a threat to remove an existing right than it will to the denial of a new right (see reversals of court decisions by congress).

Rights Consciousness, Action, and Results.

Rights consciousness may lead to the assertion of rights, through litigation or legislative efforts, but it does not always result in immediate action. There may be no apparent need to implement those rights. Those who became more aware of segregation in schools, and therefore of a right to an equal education, often saw school segregation as a southern problem requiring no implementation in the North. Thus, little attention was directed to more subtle forms of *de facto segregation resulting from regulation or practice, to inequality of education, or to unequal spending among schools depending on the schools’ racial composition. When efforts were made to implement Brown against segregated schools in the North, concern about a theoretical “right to equal education” was replaced, even among many liberal Democrats, by opposition to school desegregation or at least to those measures, such as busing, that would make it effective. The Supreme Court’s requirement that intentional discrimination based on race be proved provided an essential (and “neutral”) legal tool to those resisting further desegregation (see discriminatory intent).

If formal pro-civil rights actions have been only symbolic, how much change has resulted? Effectuation of rights in legislation may allow most of those not discriminated against to think that discrimination has ended. This is part of a more general problem in which legislation, whether intended as symbolic or not, is in the end only that, largely because of the faulty assumption that law will be implemented effectively by the executive branch and followed fully and without complaint. The belief that statutes or judicial decisions are self-enforcing also helps to explain why, beyond NAACP-initiated district-by-district litigation, rights consciousness stimulated by Brown did not at first result in action by its intended minority beneficiaries. When people realized that Brown was not being enforced, it became a basis for protest, indicating a possible lag between creation of rights consciousness and actions stemming from it. If a landmark ruling like Brown becomes part of our broader consciousness, the likelihood that people will work to bring it into actuality is increased. In fact, one may say that Brown probably had more of a short-term effect in giving African-Americans the impetus to fight for their rights, both with regard to school desegregation and other civil rights as well, than it did on elementary school desegregation itself.

Litigation and Rights.

Successful litigation is widely imitated. Often it stimulates further litigation to expand those rights already won in addition to ensuring their enforcement. Seeking rights through the Supreme Court may, however, carry a limited payoff. Some rulings are not favorable to desired rights claims and may even undermine rights thought to have been won. In addition, if rights sought by differing groups are in conflict, what may be victory for one can be a defeat for another. For example, those who seek to ban pornography as endangering women, a (p. 465) position arising directly from consciousness of women’s rights, find themselves at odds with more traditional liberals who ardently protest any limitations on freedom of expression. There is also the continuing question whether mere formal legal rights, to which most attention has been paid, can ever be dispositive: the formal equality of African-Americans or Latinos with whites, critics say, cannot supply quality education in the ghetto and barrio, and may even distract attention from the quest for effective education and economic well-being. A belief that formal legal victories can effectively redress social and economic inequality may actually induce acceptance and quiescence and mitigate against real reform efforts.

Focusing on rights as achievable only through the courts may hinder political mobilization to gain those rights. This is a result of what we might call the “myth of rights,” that is, the idea that there are rights that courts declare, that the courts will declare them, and that these declared rights will be easily implemented. All three components of this formulation are questionable. The criticism, by activists who took to the streets, of the NAACP’s reliance on litigation can be stated this way: overreliance on the courts, with attendant enforcement difficulties, distracts from the development of necessary political (electoral or legislative) strategies and actions. Some interest groups outside the civil liberties and civil rights arenas have been careful to use a combination of legislation and litigation to achieve rights rather than relying heavily, if not solely, on litigation. They have, for example, used court cases to attract public attention to their causes and to raise funds, and they have obtained important information through litigation, information they then use to stimulate legislative activity.

An important aspect of reliance on litigation is the key role of lawyers. When litigation is felt to be the central means for achieving rights, lawyers—mostly white and male—tend to be in charge; they tend to define the problems and set the parameters. Lawyer’s central role makes it difficult to raise others’ consciousness about rights. When people’s rights consciousness has been raised, turning to litigation to achieve those rights may put the group members or activists in the back seat. Within certain groups—for example, those seeking greater rights for the mentally ill—where consciousness of rights has been a device used to build a sense of community, tensions between group members and lawyers have been considerable; the group members wish to retain control of “their movement” and not to have it become, in their view at least, the lawyers’ plaything. And if the courts are seen as unwilling to provide the rights being sought, achievement of effective action in the community is viewed as better than negative national precedents from the Supreme Court. Rights consciousness may thus lead away from the courts, and particularly away from the Supreme Court, with litigation seen as a possibly self-defeating strategy.

The Supreme Court, particularly during the Warren era, has shown that it can stimulate greater consciousness of rights. The Court, however, can also produce rulings limiting rights. Whatever its direction, the Court may have an effect in producing rights consciousness because rulings affirming rights may stimulate pursuit of rights when negatively received, and consciousness of other rights may develop among those opposing the Court’s rulings. For all this, we must be careful not to overestimate the Supreme Court’s effect on rights consciousness. A number of factors limit such effects, including the way in which people view their own situations and the extent to which they assume that the Court’s rulings will be routinely enforced.

Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims (1988). Alan David Freeman, “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine,” Minnesota Law Review 62 (1978): 1049–1119. Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994). Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (1974). Stephen L. Wasby, Race Relations Litigation in an Age of Complexity (1995).

Stephen L. Wasby