Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

41  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  Alabama 165 in 1935 overturned the second round of convictions of the Scottsboro Boys on the ground that blacks had been systematically excluded from the juries that indicted and convicted them, southern white reaction was muted, not because opposition to black jury servi- ce had significantly eroded, but rather because of confidence that the ruling easily could be circumvented. 166 One reason that the Warren Court’s criminal procedure revolution has not significantly impaired the Court’s standing may be that legislatures have successfully blun- ted its impact by refusing adequately to fund counsel for indigent defendants, thus disabling them from taking full advantage of the panoply of constitutional rights identified by the Court. 167 Converse- ly, one reason Brown aroused a firestorm of resistance among white southerners is that, by 1954, they doubted their ability to control the decision’s impact, given the increased assertiveness of southern bla- cks inspired by World War II, the diminished availability of violence as a method of ensuring racial subordination, and the heightened attentiveness of the federal executive to civil rights issues. 168 Simi- larly, opposition to Roe v. Wade has been intense partly because the decision has proven difficult to nullify, given the market incentives it created for abortion suppliers. 169 Another factor influencing whether controversial constitutional decisions adversely affect the Court’s standing is the relative power wielded by supporters and critics. Not all constituencies affected by Court decisions exercise the same clout. For example, Court rulings from the late nineteenth and early twentieth centuries invalidating the progressive income tax, and striking down minimum wage, ma- ximum hour, and protective union legislation, were intensely con- troversial. 170 Yet opponents of these decisions, on average, lacked the economic and political resources of supporters. Similarly, more 165 294 U.S. 587 (1935). 166 See sources cited in Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 90 Mich. L. Rev. ??, ?? (2000). 167 See William Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1 (1997). 168 See generally Michael J. Klarman, Neither Hero, Nor Villain: The Supreme Court, Race, and the Constitution in the Twentieth Century, ch. 4: The World War II Era (forthcoming, Oxford University Press). 169 See Rosenberg, Hollow Hope , at 195-201. 170 The leading cases included Adkins v. Children’s Hospital, 261 U.S. 525 (1923) (minimum wage law); Coppage v. Kansas, 236 U.S. 1 (1915) (pro-union legislation); Lochner v. New York, 198 U.S. 45 (1905) (maximum hour law); Pollock v. Farmers Loan & Trust Co., 158 U.S. 601 (1895) (income tax). For the controversy generated by such decisions, see generally William Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994).