by Jonathan Markovitz
One of the dangers of law is how seductive it is, and how much promise it seems to offer for lawyers who want to fight for social equality. If you’re like me, and lucky enough to have studied and worked with lawyers who are constantly thinking of ways to push the boundaries of the law to create new ways to protect the rights of the most vulnerable among us, you can succumb to the illusion that the law stands alone — that careful and creative arguments can win the day and secure a measure of justice. You can be aware of constraints imposed by bad precedents, laws, judges, or juries, but it’s easy to think that there are ways to navigate around all of those obstacles. We just have to be prepared, persuasive, and better than opposing counsel.
But social movement lawyers never fight individual battles. When we fight, we’re using weapons forged through decades and centuries of struggle. 42 U.S.C. Section 1983, which is one of the major statutes used to fight for people’s constitutional rights, is also known the “Ku Klux Klan Act,” and was borne out of Reconstruction-era civil rights battles. The Voting Rights Act is a product of the modern Civil Rights movement, and would not exist if people hadn’t been willing to fight and even die for it. Lawyers would have no directly relevant precedents to rely upon in legal battles over reproductive or sexual freedom if not for the strength and tireless efforts of feminist and LGBTQ activists.
Consider Commonwealth v. Warren, a recent Massachusetts Supreme Court case. At issue was whether police had reasonable suspicion to stop a black man simply because he ran away when approached by officers. In concluding that more was needed, the court noted that black men, who are “disproportionately and repeatedly” subjected to police stops, might have reasons “for flight totally unrelated to consciousness of guilt.” The court’s analysis drew upon recent reports on racial profiling that were prompted by years of movement activism. And it gave activists, advocates and lawyers a new tool to use in their battles against racially biased policing across the nation.
Tools like this don’t exist independently of the movements that created them. They can bend and break as movements decline and fall. Their utility wanes as the movements that spawned them are subjected to backlash and repression. Trump’s road to victory was paved by decades of retrenchment by forces that never accepted the gains secured by anti-racist activism, and that launched systematic and savage attacks on the most important legal tools of Civil Rights era, including the Voting Rights Act.
A Trump presidency means that some of the most important weapons available to movement lawyers are likely to lose their edge and potency. Legislative tools may be taken away by a newly-emboldened right wing Congress. Department of Justice consent decrees, used to curb the worst forms of biased policing, may be a thing of the past with Jeff Sessions as the Attorney General. Civil rights doctrine may be eroded by a Supreme Court that has already demonstrated its willingness to eviscerate causes of action that may be used to file civil and human rights complaints, even before Trump’s first appointee has been named.
It would be a mistake, however, for civil rights lawyers to give in to despair. That’s too easy of an out, and a luxury we are not entitled to. As Sweet Honey in the Rock sing in Ella’s Song, “we who believe in freedom cannot rest until it comes.” Our legal training is a precious resource. It comes with responsibility to our communities. There may be less room to maneuver in coming days than we have been used to in recent years. But there are long and proud histories of movement lawyers fighting for change when it seemed there was no space for struggle at all. Anti-lynching activists nearly managed to force Congress to enact anti-lynching legislation in the 1920s, even though they knew that any transgressions of the racial order might need to be paid for in blood, and that it would have been folly to rely on the protection of any court in the land. Civil rights activists fought for voting rights long before the Voting Rights Act was passed in 1965. When there are no legal tools that can be used to fight for justice, lawyers can create new tools. But they can only do this when working in concert with social movements.
The darkest hour is just before dawn, and, in the immediate wake of the 2016 elections, things appear dark indeed. But this is a time to organize, not to mourn. Civil rights lawyers can still lay claim to all the hard fought victories of our predecessors. More importantly, we can work with, alongside, and as part of the social movements that are already taking to the streets to signal their opposition to the kinds of oppressive state practices that Trump plans to enact. We are nothing without those movements. With them, we have all the resources we need to continue to fight for justice.
This is an original version of an edited article on recently published on progressive.org retitled “Civil Rights Lawyers Are Vital Under Trump.”