Time To Get Litigious
By the time this is published, the White House undoubtedly will have taken yet another radical action to roll back our climate progress, divide families and attack immigrant communities, or eliminate key protections for consumers, people of color, and the LGBTQ community. Elections have consequences, and we’re in the throes of those consequences now.
As progressives, we have often looked to ballot boxes and legislative campaigns to move our agenda forward, relegating the courts to afterthought status. Both remain critically important — with key races in Georgia and Kansas in the coming weeks and important (winnable) battles over issues like healthcare and taxes taking place in Congress.
But with conservatives in firm control of Congress, the White House, and 25 state governments, should progressives turn more of our focus to the judicial branch?
WE’LL SEE YOU IN COURT
At RALLY we have experience leading communications around impact litigation that can change policy, create a conversation, and establish a cultural and political context to help fuel successful advocacy work and wins at the ballot box. We helped lead the fight against California’s Prop. 8 all the way to the U.S. Supreme Court — a case that dramatically impacted public opinion on marriage equality.
And our work around Students Matter’s Vergara v. California drove a national conversation about the rights of students to learn from inspiring, passionate teachers. Now we’re fighting to #FreeDaniel and protect DREAMers across the country from unlawful arrest and detention.
These cases — as well as recent victories like Lambda Legal’s Seventh Circuit win protecting LGBTQ employees from discrimination and the myriad of rulings against President Trump’s Muslim ban — demonstrate that litigation can break policy log jams and help shift momentum.
Today, the state and federal court systems represent clear paths toward advancing our progressive agenda — and stopping a regressive one. It’s time to get litigious.
LET’S HARNESS THIS MOMENT
Progressive America has so much passion right now — we have shut down airports, led marches through cities and towns across the country, signed up to Swing Left and forced conservatives in Congress to send all their calls to voicemail. We need pathways to channel that passion into sustained engagement that affects change today, delivers wins at the ballot box in the future, and defends the progress we made over the last eight years.
Impact litigation offers a way to engage passionate advocates right now and creates a pathway to channel their anger into action for the long haul, and a platform for conversations that lead to culture change. It’s a process in which everyone can, and must, play a role.
This was something that the LGBTQ movement saw with the Proposition 8 case. That disappointing electoral defeat in 2008 — the same night we elected President Obama — spurred new groups to form and protest and pulled passive supporters off the sidelines and into the movement.
They had the excitement, but what they lacked was experience. By creating a coalition of newly formed groups with legacy LGBTQ organizations, we were able to build a winning team. Others working on equality for trans students, key environmental actions, and to protect access to reproductive healthcare and abortion have had similar experiences. These cases are key opportunities to identify allies, build coalitions, educate activists, and put pressure on policymakers to act before the courts insist on it.
A lawsuit isn’t just a lawsuit — it’s a communications vehicle, a political organizing opportunity, and a way to create a template for state-by-state change.
WE’LL NEED FUNDERS LOOKING TO FIGHT
Impact litigation also creates an opportunity for progressive donors to use their resources effectively to stand up to Trump. This legal vehicle has the capacity to offer a tangible, and meaningful, return on that investment. Because none of this work is cheap, these lawsuits need infrastructure around them — an organization, like AFER in Hollingsworth v. Perry, Students Matter in Vegara, or the ACLU and Public Counsel in so many other cases needs to be there to manage resources, articulate and institute a strategy, leverage public opinion, engage in grassroots education and produce collateral for third party validators.
That is how you amplify impact — from an argument that simply happens in the courtroom, to a discussion happening on cable news, in statehouses, and at kitchen tables across America.
The law is the law, it’s not subject to the political climates or electoral whims of one place or another. That means impact litigation allows progressive donors to support change in places where a legislative approach is unfriendly. These cases can move a progressive agenda in conservative states that would never enact the kind of policy we believe in on things like workers’ rights, gun control, voting rights, clean air, and more. And on a federal level, impact litigation offers an opportunity to go toe to toe with Congress and the administration.
GET OUT OF DC
Depending on the scale of litigation, going to the U.S. Supreme Court may not be the best bet — or even an option. But lawsuits in state courts are a key part of a winning judicial strategy, especially when state constitutions provide protections that the U.S. Constitution does not.
With the right plaintiffs, and the right organizational strategy, a win on the state supreme court level has the capacity to create a very large ripple effect. State-based litigation can create a winning template that can be applied elsewhere. We saw this with the Vergara case — after we developed a blueprint in California, the door was open for replicating the approach in other states where categories of students were systematically denied a constitutionally guaranteed quality education.
Today, there are similar cases working their way through the courts in New York, Minnesota, and my home state of New Jersey. In the same way that legislation can be advanced in multiple statehouses and city halls simultaneously, successful impact litigation in one state can spur action in state courtrooms across the country.
THE TIME TO ACT IS NOW
As progressives, we have been searching for a way to turn the passion and energy of communities opposed to the President’s vision of the future into sustained action that supports meaningful change. Because if we can do that, we can ensure that the resistance is more than protests, marches, or demonstrations. We can make sure that what is happening today has a legacy that improves people’s lives. And at the end of the day, that is why we are all in this fight.
As one of my impact litigation heros Edie Windsor once said, before winning her own landmark case: “I trust the Constitution. Sometimes there’s a mistake, but mostly we move forward. I think we’re going to win just because I think justice will prevail. Is that crazy?”
Impact litigation provides an avenue to make the promise of equal justice and equal dignity real on the state and federal level, while giving the millions who feel powerless right now a tangible way to stand up and fight. It says to our partners, our supporters, and our fellow progressives: we will take any path we can find to win.
