Mobilizing Ideas BY DAVID PETTINICCHIO | FEBRUARY 4, 2013 · 7:01 AM | EDIT 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.