Casting Lawyers as Heroes — Undermining Movements for Equality
For those who identify with the so-called Left, the media has been hard pressed to find something worth celebrating since January 20th. Minus a contagious elation with the announcement of Beyoncé’s latest pregnancy, social media sites and television stations have been a scroll of heart-sinking news under the Trump presidency. Perhaps the only other temporary reprieve from the perpetual nausea has come in the form of the play-by-plays of lawyers in the courtroom, newfound fans in tow.
The pedestals have been polished and, suddenly, everywhere one looks, there’s talk of how the lawyers will “save us” from Trump and the half-ish of the population who voted for him. With an outpouring of praise, adoration, and money, Obama’s signature “Hope” campaign has been replaced with “Hero” and the imagery of lawyers. The exhalation of lawyers, and their centering of a civil liberties framework, however, undermines social justice movements and their visions for true equality. The current worship of lawyers instead demonstrates a misunderstanding of social change, a confusion as to community accountability, and an open display of the inconsistencies in analysis and lack of integrity in the strategies elevated by lawyers.
As Dean Spade articulates, critical race theory has illustrated the inability of the law to address, or even imagine, the true conditions produced by white supremacy. Civil rights legislation and blockbuster case wins have “failed to alleviate the systemic racialized maldistribution of wealth and life chances.” In 2017, the murder rates of trans women of color are unaffected by hate crime legislation, cities remain segregated, the average white family has 20 times the wealth of the average black family, and people of color are notoriously overrepresented and impacted in every institution of State control.
“…equality and rights advocacy not only fails to address the conditions that affect vulnerable people but often actually shores up, legitimizes, or expands harm. This occurs when advocates mobilize discourses of deservingness that divide constituencies, when advocacy participates in logics and structures that undergird the relations of domination that are being opposed, and when advocacy actually results in expanding relations and structures of domination.” — Dean Spade, “Intersectional Resistance and Law Reform”
The impact litigation strategies and civil liberties framework employed by organizations like the ACLU promise trickle-down wins and the recognition of rights, but the feelings of justice that accompany a favorable ruling fail to truly transform the conditions of our lives. What is dangerously eclipsed, instead, is the work of impacted communities and people — who not only survive the predicate circumstances necessary for a big legal showdown in the first place, but then are left to shoulder the consequences and work of the aftermath and follow-through. Time and time again, the lawyers are late to the game, the first to leave, and determined to call all the shots in between.
The currently popular celebration of all-things-lawyerly uncritically accepts the supposed protection of constitutional rights as essential for the construction of a more equal and just society. In “Policing, Mass Imprisonment, and the Failure of American Lawyers,” Alec Karakatsanis points out, “Perhaps the most striking thing, however, about American policing and mass incarceration is that there is no evidence that they work — even on their own terms.” Decades of research and human experience are convincing greater and greater numbers of people that the entire framework of the carceral system is simply an irreparable and inappropriate approach to the societal problems it claims to address. Yet the framework of constitutional rights remains front and center in the rallying cry for justice and equity. Just as policing and imprisonment has failed entirely to contribute to the construction of healthier communities, the concept of constitutional rights has failed for generations to live up to its promises. The rights framework asks the wrong questions, invites the wrong people to the negotiation table, and is incapable of holding the nuance necessary for negotiating competing needs and desires. For example, the framing of Milo Yiannopoulos’ speaking tour as a “free speech” issue centers the purposefully created controversy around conceptual “constitutional” principles rather than tangible outcomes. Just as civil rights advocacy has been unable to stay ahead of the shape-shifting manifestations of racism, the legal realms of the “free speech” debate have been unable to comprehend the nuances of harm that have developed with technologies. Laws have been unable to hold the transition from speech as offensive, controversial, or inflammatory, to that that has been weaponized via modern platforms and tools. A soapbox speech has been transformed to doxxing, real-life trolling, and forms of abuse wholly unrecognized by legal systems that just woke up yesterday to the most obvious manifestations of interpersonal violence (intra-family sexual abuse, stalking, domestic violence, etc.).
The Left, like any mass of human beings, finds comfort in assigning hero status to a select cast of characters in a time of crises, but the current impulse to do so with lawyers illustrates a concerning lack of consistency and intersectionality in analysis. Sally Yates, Noah Purcell, or the ACLU as the epitome of integrity in the current political moment abandons the important role of history as teacher. Within the same year as his “heroic” performance to enjoin Trump’s immigration ban, Purcell argued against Native rights. Yates, no doubt, worked on behalf of numerous cases for the federal government that worked against oppressed peoples. The point is not that Yates, Purcell, or the attorneys working on behalf of the ACLU have imperfect moral compasses, but that the frenzy to locate hope and power in the current moment has settled upon lawyers as saviors, and in doing so, has dangerously invisibilized complexities and histories. The ACLU now misrepresents its historical involvement with the fight against Japanese internment in the US in the 1940’s to territorially claim moral high ground and a spot in the legal battle that communities fear is coming. They’ll rake in $71 million dollars in donations, still fail to prioritize the issues the communities most impacted by injustice have asked for help with for decades, and decide an agenda based on what will bring in a broad base of donors. The ACLU will proclaim its support for trans-inclusive restroom access one day, then its support of Milo Yiannopoulos and his targeted harassment speech of transgender students the next, or Westboro Baptist Church’s harassment of gay men as they’re being buried in the ground. It’s not that the Attorney General’s office, Department of Justice, or ACLU are inconsistent, but that a constitutional rights based approach itself pledges no accountability to social justice values. At the end of the day, Yates, Purcell, and the ACLU are essentially just the white dudes in law school who appreciate their own abilities to play devil’s advocate — their underlying argument always comes back to the supposed sanctity of the Rule of Law and the Constitution, not to the inherent dignity and worth of all people. Rather than focus on the ACLU’s knight-in-shining-armor-moment as cause for celebration, perhaps our political system would benefit from an analysis that examines why a non-governmental organization is asserting itself (perhaps even necessarily so?) as the current check/balance system on the government in the first place.
