Stealth Advocacy Can (Sometimes) Change the World

Scholarship and popular writing about lawsuits seeking broad social change have been nearly as contentious as the litigation itself. In a normative mode, commentators on the right have long attacked change litigation as imperialist and ill informed, besides producing bad outcomes. Attacks from the left have likewise had both prescriptive and positive strands, arguing that civil rights litigation is “subordinating, legitimating, and alienating.” As one author recently summarized in this Law Review, these observers claim “that rights litigation is a waste of time, both because it is not actually successful in achieving social change and because it detracts attention and resources from more meaningful and sustainable forms of work such as mobilization, political lobbying, and community organizing.” Several particularly influential studies eschew the clear ideological position of the works just referenced; they offer what they claim is a purer empirical grounding for the conversation. These studies highlight backlash, purporting to demonstrate that many landmark decisions—among them, the U.S. Supreme Court’s Brown v. Board of Education and Roe v. Wade, the Hawaii Supreme Court’s Baehr v. Lewin, and the Massachusetts Supreme Judicial Court’s Goodridge v. Department of Public Health—have turned out to be not merely inefficacious but counterproductive, harming the very causes they aimed to assist because of the countermovements they provoked.