Spencer Tracy (as civil rights lawyer Clarence Darrow), Harry Morgan, and Fredric March in “Inherit the Wind,” a 1960 dramatization of the Scopes “Monkey” trial, in which a high school teacher is convicted for teaching Charles Darwin’s theory of evol...
Social movement lawyers never fight individual battles. When we fight, we’re using weapons forged through decades of struggle.
42 U.S.C. Section 1983, one of the major statutes used to fight for people’s constitutional rights, is also known the “Ku Klux Klan Act”; it 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 waging legal battles over reproductive or sexual freedom rely on the 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.
Donald Trump’s road to victory was paved by decades of retrenchment by forces that never accepted the gains secured by anti-racist activism. And his 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 GOP-led 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 attorney general. Civil rights may be eroded by a Supreme Court that has already demonstrated its willingness to undercut 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 an out. 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 in recent years. But there are long and proud histories of movement lawyers fighting for change that we need to honor.
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 election, things appear dark indeed. But this is a time to organize, not to mourn. Civil rights lawyers can still lay claim to the hard-fought victories of our predecessors. More importantly, we can work alongside the social movements of our time—and against the kinds of oppressive practices that Trump intends to enact.
Jonathan Markovitz is a civil rights lawyer and sociologist based in San Diego, California.