The Debt of All Public Interest Lawyers
Dr. Martin Luther King, Jr.’s birthday is always an opportunity to reflect on his own personal story and the story of his many allies in the quest for equality. This both pertains to what was accomplished during the civil rights movement, as well as the work that remained to be done, and today still remains, after Dr. King’s tragic passing. The most important part of the story is the one we learn in school (well, hopefully you do!): of him and others leading various boycotts, marches, acts of non-violent civil disobedience, and other consciousness-raising tactics to win for African Americans both equality under the law and also to be seen as equals in the hearts of their white brethren.
A subplot to that story is the fight in the courthouse for equality. It is one of the three legs of the stool of effective social action, which are: (1) shaping public opinion, (2) legislative change, and (3) legal change in the courts. One reason Dr. King and his allies were so effective was that they understood that all of these legs were necessary, and were so good at all three.
In pursuing our own cases at the Institute for Justice, we work with all three methods as well. We speak to the media and directly to the public about why, say, civil forfeiture is an affront to American values, or taking people’s homes to give them to wealthy corporations is antithetical to the American Dream. But as a law firm, of course, we’re more familiar with legal change. So in honor of Dr. King and the wider civil rights movement, it’s most appropriate for us to mark his birthday by noting the debt we, and all public interest lawyers of today, owe to his allies who litigated for civil rights during that era, particularly Thurgood Marshall and the NAACP Legal Defense Fund (LDF).
Most casual students of history know the story of Marshall going to court to reverse the “separate but equal” interpretation of the Constitution. But the road there was a long and winding one. You can read the full story in numerous places, including the massive but fascinating Simple Justiceby Richard Kluger. It was a winding road because change in the law is usually a very gradual and small-c conservative process. It’s also a very human process that can depend on whom is before the court, even though, for very good reasons, the ideal of justice is that it is blind.
Marshall and the LDF didn’t just file one case that quickly reached the Supreme Court and became Brown v. Board of Education in 1954. They filed many lawsuits on many issues over many years. They often addressed instances of discrimination that aren’t as central to the system of segregation as separate public schools; for example, differences in pay between teachers of different races in certain locations. Further, since they were “test cases” the LDF knew to represent citizens who humanized the issue for the judges. That meant plaintiffs who, if possible, were respected members of their communities, perhaps who had overcome adversity, and who simply wanted to be treated equally under the law. After a series of wins on various issues with various media-friendly clients, chipping away at the legal edifice of segregation and the hearts of judges and the public, the time was made right for the cases (four of them) that ended up before the Court in Brown.
Today that playbook of Marshall and his colleagues is followed by all public interest lawyers worth their salt. Whether libertarian, progressive, or conservative and whether litigating issues of racial justice, religious freedom, voting rights, environmental issues, property rights, or free speech, every organization that fights in court with a desire to change the law follows that strategy. Some do it much better than others, of course, and some litigate for issues that Dr. King and Thurgood Marshall would vehemently disagree with. But the strategy of humanizing injustice with sympathetic clients through repeated, incremental, but strategic, litigation is one all public interest lawyers share, whether working for an organization like today’s NAACP LDF, or the ACLU or IJ, or pro bono attorneys at private firms. On this anniversary of Dr. King’s birth, all public interest lawyers of any stripe should give thanks to his legal allies who developed this method and showed the way in fighting injustice, at least one-third of the time.
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.