Vol. 16 No. 11 (November, 2006) pp.891-896
THE MAKING OF A CIVIL RIGHTS LAWYER, by Michael Meltsner. Charlottesville: University of Virginia Press, 2006. 336pp. Cloth. $34.95. ISBN: 0813925010.
Reviewed by Jon Goldberg-Hiller, Department of Political Science, University of Hawai’i. Email: hiller [at] hawaii.edu.
For the sociolegal scholar in a post-civil rights era (Schacter 1997), Michael Meltsner’s memoir of his professional life as a lawyer with the Legal Defense Fund is a layered treat. One part is romantic indulgence, a glimpse back into a time when civil rights had some progressive clout, when Jews and African Americans worked side by side for racial equality, and where a cause lawyer could experience “the teary, breathtaking, yearning, better-take-a-deep-breath feeling that comes from being there when people make the move of their lives and you identify with it, maybe even helped them make it” (p.76). A second part is a confirmation, clarification and sometime challenge to many of our central theories about cause lawyering on behalf of progressive social movements and the power that courts had and still have to remake our political worlds. A third part that I will leave to the delighted reader to explore personally, is the compelling literary engagement with a fascinating lawyer, and his professional, strategic and personal interactions with his teachers (Alexander Bickel stands out here), his clients (Muhammad Ali among them), his colleagues (Jack Greenberg, and Thurgood Marshall) and the familiar cases whose backgrounds and backlash he recounts (FURMAN, MCCLESKEY, GREGG, GRIGGS and BROWN).
The overwhelming sense that the civil rights era has passed into a world of growing inequality and permanent African American disadvantage (Shapiro 2004), narrowing access to courts, conservative anti-rights initiatives designed to rollback affirmative action and gay rights (Keen and Goldberg 1998), and a Supreme Court with uncertain allegiance to its own civil rights precedents (among just a few) has led to a deep ambivalence if not full-blown skepticism about the power of law and the tactic of litigation to create enduring social change (Glendon 1991; Rosenberg 1991; Scheingold 1974). In this climate of doubt, Meltsner retains an old-world optimism about law that begs the reader for indulgence or dismissal – e.g., “the world is filled with horror, and the law is a toolbox to help fix it” (p.2), and “it is my hope that new energy will be liberated by an understanding of how civil rights work grew from small beginnings into a powerful means of change” (p.14). Indulgence is worth its price. Although the sociolegal reader familiar with the empirical legal mobilization and cause lawyering literatures that Meltsner does not cite (McCann 1994; Sarat and Scheingold 2005, 2006; Scheingold and Sarat 2004) will already be prepared with the ambivalent sense that rights work as both resource and constraint, that the value of legal mobilization must be measured in many subtle ways, and that [*892] cause lawyers contribute to social change best with litigation as much as with politics (McCann and Silverstein 1998a), Meltsner’s optimism brings a new perspective. Indeed, if the growth of recent sociolegal theory has been impelled by a sense of post-civil rights skepticism about law, Meltsner illustrates that this knowledge is nothing new to LDF lawyers and that there are sophisticated ideas about the legal toolbox to learn from personal toil in the courts.
Meltsner gives us a very useful perspective on the ways that lawyers build knowledge about rights. In one chapter, he explores the difficulty that lawyers face turning the conceptual worlds of law school (Yale, in his case) into the practical worlds of litigation and social change. In numerous parts of the book, he writes about the ways that civil rights lawyers strive to see race and make it seen despite the American predilection for cognitive disassociation that hides race from consciousness, and the long history of racism that has made “racial ideas retreat into structure where they do their work invisibly” (p.12). The very intractability of race hidden behind these cultural and historical veils provides one of the strongest arguments for believing in litigation whose “very focus on a particular controversy allows problems to appear manageable even if general across-the-board solutions prove elusive” (p.177). Above all, knowledge is produced institutionally, within the LDF, through the practical struggles for civil rights.
The post-civil rights era in which civil rights litigation was slowed and made less effective in achieving social justice for African Americans is revealed through the difficulties of developing this conceptual and practical knowledge about race. Some issues were structural. Technical doctrine created by more conservative judges made what was once a traditional approach to civil rights litigation more difficult. Money for litigation dried up in part due to competition by other progressive litigating firms and the fragmentation of rights communities. When money was flush, exploratory and experimental legal efforts were easier to undertake for the LDF. Today, “much of the caseload looks defensive and reactive, as if LDF were under threat and its priorities set elsewhere” (p.172). Defendants, too, have changed, making the racist/victim, Southern/Northern frameworks that dominated the earlier years less resonant; some new types of defendants, such as the Black Panthers, upset financial backers of the LDF.
The political culture of race also made a severe impact on what the LDF could accomplish. The Moynihan Report, released in 1965, echoed throughout the progressive legal and social policy communities for years, changing the framework of LDF litigation. “Suddenly, what at least some of the time people in authority had been able to accept as a moral imperative to compensate for historic wrongs against a devalued racial group became a series of questions turning on cost-benefit analysis, balancing conflicting views and a coming to terms with multiple interests and market forces” (p.153). As the narratives of race and oppression became more complex, and the Great [*893] Society expanded, the LDF played out what Abram Chayes and Owen Fiss were only beginning to conceptualize: the changing nature of disputing that was less about the interests of discrete litigants and increasingly about the terms of public policy. Once conservative legal foundations formed in the 1970s and made civil rights a target, the degrees of freedom were clearly constricted. For Meltsner personally, these changes could be felt in the increasingly difficult relationships between Jews and Blacks, sometimes within the LDF, tensions that were exacerbated by the complexities of litigating Northern school desegregation, especially in New York.
Meltsner’s memoir suggests that civil rights also became a victim of its own successes.
LDF’s expertise, reputation, and approach had been crafted in intense battles against blatant racial classifications. As the explicit signposts marking racial separation came down and the boundary between race and poverty grew fuzzy, the odds that LDF could continue to use its arsenal of major law-reform interventions successfully grew longer (p.169).
Meltsner’s retrospective criticism of the LDF is that it preferred to chase these signposts, working with unions and other institutions already arrayed against them, often forgetting in the process the poorest victims of racism such as tenant farmers. “The NAACP had nothing like a considered strategy directed to economic matters” (p.97), he concludes. Trial efforts to delve into the racial bias in health care never went far, and “one does not see in the LDF caseload overwhelming recognition that one of the key issues for black America is the persistence of the underclass. Only a dozen cases deal with economic justice, and while these are important cases, they are the sort that will help primarily to improve the educational or employment opportunities of the middle class” (p.172).
This critique of the LDF, ironically, provides Meltsner a basis for criticizing the skeptical literature on law and social change. Meltsner takes aim at Gerald Rosenberg’s thesis in his book THE HOLLOW HOPE that BROWN, among other civil rights cases, revealed the lack of judicial efficacy and Rosenberg’s implication that politics would have had a larger payoff than litigation ever could. Meltsner suggests that Rosenberg and other scholars were in the same leaky boat with the LDF. None had ever invested conceptually or practically in the development of political strategies to complement or replace litigation, even though the scholars railed against a legal pathway to progressive change and the LDF battled its own missteps now and again.
Aside from generalities about supporting legislation, education of the electorate, or further research, neither Rosenberg nor those who follow him have much to say on this subject. The result is a diagnosis that can easily be understood to undermine one of the few accessible modes of reform available to the disempowered while providing nothing but bromides in its place (p.188).
The real story about THE HOLLOW HOPE, I think, is why it has been taken so seriously as a metaphor for the [*894] limited powers of the judiciary and why so little analysis has been given to the concrete options and practical alternatives to using the courts (p.187).
The cause lawyer literature may challenge this perspective (McCann and Silverstein 1998b), but Meltsner makes a relevant point for sociolegal scholars: for all our efforts to “decenter” law (Scheingold 2004: xxii), we too rarely examine the contexts in which we study law for other politically relevant dynamics, and we have rarely invested in counterfactual analysis to explore alternatives to litigation.
In another contribution to sociolegal scholars, Meltsner’s memoir provides an important argument about temporality that adds to his firm belief that civil rights litigation does and can still make a difference. Rosenberg, his main foil, “established only the slender truth that activists did not walk around actively citing BROWN as Scripture” (p.183). Sociolegal analysis of legal mobilization has also taken on Rosenberg and has made Meltsner’s point that there are many other ways that consciousness about law and justice was modified by the Court’s civil rights cases. But Meltsner adds to this work the importance of the longue durée, a perspective often discounted by our desire for measurable, discrete empirical results. “Americans had lived with slavery and segregation for hundreds of years; why does the fact that serious school desegregation took ten to fifteen years suggest that the Supreme Court decision played no significant part in the changes that took place in the 1960s and 1970s?” (p.186). Meltsner’s point is that looking at the picture from a lifetime of struggle in and out of the courts reveals a significant effect for BROWN (Sarat 1997). But not one without criticism. While BROWN “fostered integration and condemned a detestable racial system” and built a Black middle class, it also downplayed the constitutional goal of educational equity, exacerbated class inequality, and led to a great deal of resegregation. About BROWN, he summarizes, “we should honor it; we should lament it” (p.187).
Meltsner’s memoir of civil rights cause lawyering spans a career that links both of these divergent sentiments. His book tells us about the changes that have led to a much more perilous climate for civil rights litigation, and challenges us to refine our thinking about the progressive consequences of law. It also challenges us to reconcile our tendencies for scholarly skepticism with his own optimism about law’s contribution to social change. As a scholarly reader, I am haunted by a line that seems to force a scholarly response if only to know that our own work matters to those struggles for social justice that so many of us study with imagined solidarity. In frustration with Rosenberg, Meltsner writes, “Perhaps one shouldn’t ask scholars to do more than play their own role” (p.186). This memoir has a curious way of making us think seriously and productively about what that role ought to be.
Glendon, Mary Ann. 1991. RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE. New York: Free Press. [*895]
Keen, Lisa, and Suzanne Goldberg. 1998. STRANGERS TO THE LAW. Ann Arbor: University of Michigan Press.
McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.
McCann, Michael, and Helena Silverstein. 1998a. “Rethinking Law’s “Allurement”: A Relational Analysis of Social Movement Lawyers in the United States.” In Austin Sarat and Stewart A. Scheingold (eds). CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES, New York: Oxford University Press.
McCann, Michael, and Helena Silverstein. 1998b. “Rethinking Law’s “Allurement”: A Relational Analysis of Social Movement Lawyers in the United States.” In Austin Sarat and Stewart A. Scheingold (eds). CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE : CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago.
Sarat, Austin. 1997. RACE, LAW, AND CULTURE : REFLECTIONS ON BROWN V. BOARD OF EDUCATION. New York: Oxford University Press.
Sarat, Austin, and Stuart A. Scheingold. 2005. THE WORLDS CAUSE LAWYERS MAKE : STRUCTURE AND AGENCY IN LEGAL PRACTICE. Stanford, CA: Stanford Law and Politics.
Sarat, Austin, and Stuart A. Scheingold. 2006. CAUSE LAWYERS AND SOCIAL MOVEMENTS. Stanford, CA: Stanford Law and Politics.
Schacter, Jane. 1997. “Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil-Rights Era.” 110 HARVARD LAW REVIEW 684-731.
Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS. New Haven: Yale University Press.
Scheingold, Stuart A. 2004. THE POLITICS OF RIGHTS : LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE (2nd ed). Ann Arbor: University of Michigan Press.
Scheingold, Stuart A., and Austin Sarat. 2004. SOMETHING TO BELIEVE IN : POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, CA: Stanford Law and Politics. [*896]
Shapiro, Thomas M. 2004. THE HIDDEN COST OF BEING AFRICAN AMERICAN : HOW WEALTH PERPETUATES INEQUALITY. New York: Oxford University Press.
BROWN v. BD. OF EDUCATION, 347 U.S. 483 (1954).
FURMAN v. GEORGIA, 408 U.S. 238 (1972).
GREGG v. GEORGIA, 428 U.S. 153 (1976).
GRIGGS v. DUKE POWER 401 U.S. 424 (1971).
MCCLESKY v. KEMP, 481 U.S. 279 (1987).
© Copyright 2006 by the author, Jon Goldberg-Hiller.
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Making of a Civil Rights Lawyer