Courts are no place to win modern battles for civil rights

Watching the election coverage last week, as the giddy anchorpeople were trying to illustrate how far America had come by electing an African-American President, I was struck by how often the networks used images of famous marches to illustrate the civil rights struggles of the early 1960s. Of course, footage of policemen swinging billyclubs and demonstrators getting driven back with firehoses and tear gas makes for far more compelling television than watching lawyers stare at typewriters (or legal pads or computer screens) trying to pick out just the right persuasive word.

But that's not the only reason the marches were used to illustrate the struggle.

It occurs to me that it was the marches -- and the responses to those marches -- that helped as much as anything to change minds -- to wake up minds -- around the country. Eventually, these marches created a political climate in which a majority of congressmen could vote for civil rights and voting rights laws.

Gahndi was a lawyer, too, you know. But he's not remembered for arguing cases. I know contemporaries thought of him as a hypocrite because his "non-violent" demonstrations deliberately courted violent over-reactions from Indian colonial authorities. Dr. King and many of the other leaders of the civil rights struggle in this country adapted similar tactics, and were likewise labeled hypocrites, largely because of the responses that their tactics provoked... as the picture on top of this post illustrates.

Today, however, in America, people are too enamored of the power of courts. For example, nearly every week there's another story in the paper about some poor woman who died because judicial orders of protection proved to be no defense against guns wielded by crazed ex-husbands or boyfriends. I get calls all the time from people with entirely unrealistic expectations about what a court can do.

Part of this over-reliance on courts is caused by cowardly legislators who too often have looked to the courts to make tough decisions on questions that are, or should be, entirely political in nature. But it really doesn't matter who's to blame.

The point is that lawyers can file suits in court to resolve controversies between or among particular adversaries. We can settle tort cases because we know the range of likely outcomes. But when courts get bogged down in political questions (we have to disguise them as 'constitutional' questions in order to deal with them, legally) settlement and compromise can't happen because we don't know the likely outcome. The suit is filed to determine who will win and who must lose.

Lawsuits are a good and useful tool for establishing a more just society, but it's really all we lawyers have to offer. Carpenters need more than hammers, plumbers need more than wrenches. Political questions -- and that's what civil rights struggles are -- must be aired in public. When there are "winners" and "losers" in these battles, we all lose. What we really need to do is build consensus. And consensus must be forged outside the courtroom.

In the next couple of days I want to talk about two civil rights struggles that I think are poisoning public discourse in this country -- largely because these "rights" are judicial creations and not the product of hard-won consensus. I am on the unpopular side, probably, in both cases, and you may want to take a firehose to me when I'm done. Or maybe sooner.

Readers looking for the usual froth and levity will have to wait until next week. Maybe this is a post-election hangover, but I feel I have a piece to speak and I'm going to try and do so here. Civilly.