Plessy, Parks, Padilla, & Roe

Chris Cronin of the American Dissent Radio podcast (RSS feed) lays out how long-term transformative campaigns are waged within the judicial system. I highly encourage everybody to listen to the podcast (or read the transcript), and consider how the tactics described are employed effectively on both sides of the aisle.

In the context of the Rosa Parks protest, Cronin explains:
The strategy of satyagraha is for an oppressed people to show the immorality of their oppression to the world simply by trying to do what any person should be able to do, like gather salt from the sea as Gandhi did, or walk across a bridge or sit in a bus or sit down at a restaurant. When cameras show people being barred from or arrested for doing these basic things, then the immorality of the acts are obvious, and the oppressors appear horrid.

Satyagraha works well to create public opinion, but the reputation of the peaceful demonstrators must be uncontroversial so that the demonstration of the oppression is obvious, and the oppressed people are without question sympathetic.
This is a point that activists would be well-advised to remember when planning public dissent: the most effective method is not to showcase your numbers, or to make demands, or to entertain, but to draw attention to the injustice you are protesting. Not a march, or a rally, but a demonstration of what you are opposing.

With that as preface, Cronin continues:
But as well as satyagraha can work to form public opinion, legislatures can be slow to risk sponsoring laws that legally reverse unjust conditions and treatments. The NAACP in its youth (they were founded in 1909) realized that the courts were an important forum for seeking social justice in part because they were efficient. The amount of effort and resources that an organization must exert to create and lobby for legislation can be immense. If that organization concentrated on the courts, however, rational arguments and well-cited precedent could create new interpretations of law, or of the Constitutional, that would create for black Americans a strong foundation for their rights arguments.

The NAACP created the Legal Defense and Education Fund in 1940 to create a long-range, protracted, multi-decade legal battle to reverse the foundation of legal discrimination against blacks in the US. The LDF as it was known saw an 1896 Supreme Court decision, Plessy v Ferguson as the basic legal rationale for laws that allowed states and public services to segregate people by race. Plessy required that governments allow separate, but equal accommodations for their citizens in public services, such as transportation or schools.

Interestingly, Plessy was a test case. An organization of people in New Orleans wanted to fight a law that required blacks and whites to sit in segregated railroad cars. As you can imagine, the cars reserved for the whites were more comfortable and clean than those reserved for blacks. Plessy, a man who was one-eighth black, was asked by this organization to conspicuously take a seat in a whites-only railway car so that he could be arrested and tried. The association was certain that Plessy's case would expose the unjustness of the law under the Fourteenth Amendment, and it would be reversed.

Not only was this association wrong in their assumption, but the resulting Supreme Court case created a precedent that gave states permission with constitutional authority to discriminate against blacks.
Cronin goes on to detail case after case which undermined the constitutional ground on which Plessy was based, as the NAACP won one decision after another which countered the idea that segregation and equal protection could coexist . . .
[ . . . ] so that when Brown v Board of Ed came to the Supreme Court, Justice Earl Warren was left to state that there were no legs left for Plessy to stand on. Brown v Board of Education was decided in favor of the NAACP requiring states to integrate public schools for children.

The NAACP had created for the courts, on their terms, opinion based on years of carefully selected and pre-conceived cases. As they were able to build successes slowly, they were also, then, able to deliver on a consistent strategy to overhaul the basis of legal discrimination.

They could have only accomplished this as an organization committed to the long range strategy despite the difficulties and occasional setbacks over the course of nearly two decades.
Here is your judicial activism: not a product of judges who impose their politics on their decisions, but of activists who use the court system to demonstrate the injustice of the system, and to change the legal and political landscape of the country.

Fast-forward to the present. The federal government scoops up a gang member with a criminal record, a US citizen, Jose Padilla by name, and detains him indefinitely without bringing charges or showing evidence, based on the mere assertion that the man is a terrorist. The government tells the press that Padilla was planning to build and detonate a radioactive "dirty bomb" in an urban area, but steadfastly refuses to produce a shred of evidence, and fights a protracted legal battle to deny Padilla any sort of due process at all.

The government's desired outcome, the finding it is requesting from the court, is that it has the right to take an American citizen into custody and detain him indefinitely, without arraignment, without charges, without evidence. In other words, the government is asking for permission to disappear citizens for any reason, or for no reason, as it sees fit.

Similarly, watch the creeping policies being pushed by the abortion-criminalization crowd, as they attempt to undermine the foundation of Roe v. Wade by looking for decisions and legislation that identify a fetus as a person, possessed of civil rights and entitled to equal protection under the law. Slowly but surely, they are looking to erode the decision and eventually overturn it.
The NAACP created in the twentieth century a new way to approach the appellate courts. America's courts are both the most easily accessible branch of government (just break a law and you'll be there), while also being the least responsive to public pressure. While a congressperson, for instance, can be taken into or removed from office during an election, appellate judges and their opinions are almost untouchable by citizens.

However, the NAACP found a way to influence the courts by carefully creating a long-range strategy, creating and selecting cases and friendly venues for them, and building upon their own precedents to compel judges that using legal logic, they must eventually find in favor of the civil rights causes that the NAACP is dedicated to fighting.
This is how things get done, how "judicial activism" is carried out: not by judges, but by plaintiffs and lawyers. Judicial activists seek to change policy by demonstrating how outrageous its consequences can be. Only the proponents of these outrageous policies actually call it activism when it happens before their eyes, however. The rest of us call it justice.

This is the power of the courts. Each new decision, however decided, shifts the whole country in a certain direction. Some decisions cause a shift so slight as to not be detected; others, like the one caused by Brown v. BoE or the one which will eventually answer the Padilla question, can shake the earth.

Because it is not activism for the courts to decide these questions; it is their whole purpose. And it is the job of the activist to choose which questions need answering.

All quotes taken from the 10/30/05 edition of the American Dissent Radio Podcast (RSS feed).

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