Changing the wind: notes toward a demosprudence of law and social movements.

• Author: Guinier, Lani
• Position: II. The Montgomery Bus Boycott through Conclusion, with footnotes p. 2777-2804 - The Meaning of the Civil Rights Revolution

2. THE MONTGOMERY BUS BOYCOTT

   On the night of December 5, 1955, Dr. King put succinctly the relationship between law on the books and law as experienced. Well before King became a "national" leader, he delivered his very first speech as head of the Montgomery Improvement Association (MIA). Earlier that day, Rosa Parks had been convicted of disorderly conduct for refusing to acquiesce to the Jim Crow laws of the segregated bus system. Her arrest and trial triggered plans for a one-day boycott of Montgomery buses. At the mass meeting celebrating the first day of the bus boycott, King asserted: "We are here because of our love for democracy, because of our deep-seated belief that democracy transformed from thin paper to thick action is the greatest form of government on earth." (120) Drawing on the authority of the Supreme Court, he linked the decision in Brown v. Board of Education, which had come down a year earlier, to the authority of God, Jesus, and the very nature of justice itself. Declaring that he had "legal authority behind [him]," King linked his new community's "right to protest for right" to a biblical story of divine justice. (121) King challenged local legal authority with the national commands of the highest court. But he joined that challenge to the even higher authority of the religious faith that his listeners shared.

   The mass meetings were crucial. Like the one on December 5, 1955, at which King connected two important sources of justice, God and the Court, the meetings continued to play a critical role throughout the boycott's thirteen months. (122) For black Montgomery citizens, the mass protest action was a constant cycle of personal sacrifice, weariness, and collective "rousement" from mass meetings. (123) Mass meetings ultimately became the movement's works of art. At those meetings, religious and legal idioms were fused and the collective will of the bus boys and the maids, the porters, and the seamstresses, was galvanized on a nightly basis. (124) Middle class and poor blacks, at the local and national level, strategically mobilized their collective resources. As a result, fifty thousand black people in a single city refused to ride the segregated buses for more than a year. (125)

   At the time, black Montgomery attorney Fred Gray was bright, aggressive, and a year out of law school. Gray, who moonlighted on weekends as a preacher, wanted to challenge the city's segregation laws even before Rosa Parks was arrested for refusing to obey them on a city bus. Yet Gray waited to file his case until the MIA leadership voted to grant him that authority. More significant than Gray's apparent self-restraint (126) were the institutional restraints imposed on him by the MIA, whose executive board and strategy committee rendered Gray unable to dominate their broader extra-legal strategies. (127) For example, although they relied on stories of law and rights talk to both inspire and legitimize the boycott, King and the MIA initially resisted actually litigating (except for Parks's catalytic appeal). (128) Thus, Gray entered an organizing landscape with wide strategic possibilities that the MIA surveyed with Gray's input, but not his control. Ultimately, the leadership authorized Gray to prepare the "ultimate weapon" of a federal lawsuit against bus segregation. (129) Thanks to Gray's advance behind-the-scenes preparation, he was able to file the suit relatively quickly. (130)

   Gray supported rather than led the boycott organized by the MIA, whose key resources grew out of grassroots mobilization and mass action. (131) Moreover, the deliberately non-bureaucratic structure of the MIA, an "organization of organizations," extended to, and endured because of, the MIA's grassroots fundraising. (132) The MIA's carpool and other capital-dependent activities were initially supported by collections at the mass meetings, (133) which literally "refueled" the boycott. Although money soon flowed from outside, these funds were raised in large part by black churches, organizations (including NAACP branches), and individuals, as well as some northern white individuals and organizations. Thus, money from sympathetic whites augmented the large sums systematically raised by the black community of Montgomery and its networks throughout the country. (134) The funding pool spread with the fame of the MIA's boycott: by the time the three-judge panel declared Jim Crow buses unconstitutional, the organization was rich enough to sustain the boycott pending the appeal. (135) The upward, inward flow of financial resources located power inside the organization, not just its representatives.

   The MIA was a constituency of accountability, capable of holding lawyers like Gray to the discipline of shared power. With grassroots leadership anchored in the church, funding was not controlled by a single outside donor. Instead the MIA benefited from a motivated community and an ability to draw on the resources of the black middle class who initially provided the cars to ferry black people to their jobs. Although it was the intervention of the Supreme Court, ruling on the case Fred Gray brought in federal court, that ultimately declared the segregated buses unconstitutional, it was the social movement activism embedded in a biblical belief in justice that shortened the distance between our democracy's reality and its potential to be the "greatest form of government on earth." Story-making by community members became mantras of the movement. One memorable mantra was Mother Pollard reassuring MLK that: "My feets is tired, but my soul is rested." (136) Told in their own words, these narratives of justice repositioned blacks in Montgomery from victims with a grievance to citizens with a cause. They captured the dignity of the community's effort, inspired protests in other cities, built other insurgent organizations such as SCLC, and ultimately influenced blacks North and South to believe in their own agency to transform our democracy from "thin paper to thick action."

   Fred Gray and other litigators certainly played a crucial role representing the boycotters in Montgomery. (137) In this role, Gray and others were held accountable to a constituency that had rarely found a public voice. They translated their client's concerns and grievances into legal cases that did much more than inform the litigants of their respective rights and responsibilities. The process in Montgomery transformed the nature of the political struggle using, among other things, the idiom of law. (138)

   As a result of the supportive and influential role of Fred Gray, and the community-driven power of the MIA, the boycott's successes went beyond the litigation victory that decisively desegregated the buses. (139) King personally noted the lessons learned: the solidarity of the community around a common cause; (140) the integrity of their leaders, who did not have to sell out; the increasing militancy of the black church; and the community's discoveries of dignity, destiny, and strategy. (141) Furthermore, the movement trained King and other fellow ministers as leaders in the civil rights struggle; although the MIA itself burnt out after the sustained boycott campaign, from its ashes rose a new organization, the SCLC. (142)

   The court decisions in Browder v. Gayle (143) were important texts that influenced and conditioned discourse and action within the larger society. But legal academics and lawyers often ignore the complex and extrajudicial ways in which social movement actors make themselves audible to each other, to their opponents, and to elite policy makers and legal interpreters. The popular amnesia relating to the case of Browder demonstrates the ways in which law, while important to the legal affirmation of the premise of the boycott, has been viewed almost as a footnote to the action of the boycotters and the sustained resistance that it represented. The litigation, the judicial decision, and the actions of the people combined to change the climate in Montgomery. They changed the wind.

   As the Montgomery Bus Boycott story illustrates, the actual conversation between law and social movement activism is complex and multi-directional. It is grounded in the actions and beliefs of ordinary people who come together and craft, through their experiences and actions, a story of social life and power and make change over time. It draws in participants from outside the profession, deepening law's reach beyond the sophisticated legal grammar of formal fairness to the transcendent commitments of justice. When this happens, the language of law is stretched to accommodate the language of the people, especially those who act collectively to strengthen our democracy. Thus, social movement actors in Montgomery influenced the way courts and the people themselves interpreted and gave meaning to law.

   The bus boycott involved a theory of popular mobilization and a theory of representative democracy. Social movement activists, represented by lawyers but also representing themselves, became important authoritative interpretative communities of our democracy. Martin Luther King, Jr.'s authoritative interpretive community was grounded in a "democratic" universe of people who were "voting" with their feet (by walking to work), with their personal spirit fused with the spirit of collective struggle and the historic story of biblical liberation, and with the meaningfulness of their shared sacrifice. Their actions had lasting impact to the extent they provoked shifts in popular understandings of law and justice. They did not just enforce specific and discrete law reform policies or proposals. By interrogating their collective discourse in the same ways lawyers and scholars carefully analyze Supreme Court oral arguments and the resulting decisions, we can begin to understand the way social movement actors author legal meaning. (144)

   In the Montgomery Bus Boycott, the lawyers represented a...