Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution.

• Author: Russell, Margaret M.

1. INTRODUCTION: THE QUEST FOR LAW REFORM IN THE POST-CIVIL RIGHTS ERA

   At first glance, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution, by Jack Greenberg,(1) and Failed Revolutions: Social Reform and the Limits of Legal Imagination, by Richard Delgado(2) and Jean Stefancic,(3) appear to have little in common. Certainly, they are vastly different in genre, subject matter, scope, perspective, and tone. Greenberg, the former Director-Counsel of the NAACP Legal Defense and Educational Fund -- also known as the "Inc. Fund," or simply "LDF" -- offers Crusaders in the Courts both as a detailed history of LDF's preeminent role in the creation of twentieth-century civil rights law and as a personal memoir of his thirty-five years there as a litigator and organizational leader. Consistent with the structure and style of many historical and personal reminiscences, Crusaders in the Courts relies heavily on a straightforward chronological narrative peppered with colorful and riveting anecdotes of its protagonists' legendary deeds; in Greenberg's book, the heroes include Thurgood Marshall,(4) Constance Baker Motley,(5) Robert L. Carter,(6) Greenberg himself, and myriad other LDF lawyers who crafted the legal strategy of the modern civil rights era with such landmark cases as Brown v. Board of Education,(7) Furman v. Georgia,(8) and Griggs v. Duke Power Co.(9) Greenberg's assessment of LDF's overall record, though occasionally somber and qualified, is for the most part extremely sanguine about both the success of the "civil rights revolution" and its prospects for continued social, political, and legal progress toward a nonracist, egalitarian society. Using the civil rights revolution forged by LDF's "dedicated band of lawyers" as a prototype, Greenberg hopefully exhorts a new generation of public interest lawyers and activists to take up the banner of law reform-through-litigation and to continue the noble crusade. He invests considerable faith in the tenet that redemption lies with the right kind of leaders:

   Now is the time for a new movement, as tenacious, relentless, and idealistic as that of the 1960s, a new Margold plan, or plans, as prescient as the original, and new leaders -- a Charles Hamilton Houston, a Thurgood Marshall, a Martin Luther King, Jr. -- who will hold high ideals and at the same time keep clearly in mind what is possible and how practically to achieve it. These new leaders will be large people, large in character, large in vision, who will be prepared to plunge into the struggle personally, wrestling with concrete issues as Thurgood and Charlie Houston did in the early Restrictive Covenant, White Primary, and school desegregation cases, and as Martin did in the Montgomery bus strike and in the strategy and tactics of the Selma to Montgomery march. [p. 516]

   Failed Revolutions, conversely, is a bracing theoretical critique of American law reform movements as distressingly and repetitively similar exemplars of the deficiencies of traditional legal thought and practice. Wide-ranging and eclectic in their choice of jurisprudential targets, Delgado and Stefancic identify the structure of mainstream civil rights litigation as but one example of the stagnation of prevalent law reform efforts (p. xv). The authors speak not from career-long experiences as civil rights litigators but as, "respectively, a law professor and a legal writer-information specialist ... [who] have immersed ourselves in reform movements whose unfinished states we find deplorable and puzzling" (p. xv). According to Delgado and Stefancic, the conventional "hero" model of the public interest lawyer cannot ameliorate the abysmally regressive state of the current legal system; in fact, the authors argue, such a model can be outright deleterious to social change movements by fostering delusions of incremental progress that mask the desperate need for fundamental change. Although they express considerable admiration for the commitment of such "crusaders" as those Greenberg lauds -- and exemplifies(10) -- the authors posit that movement "saviors" are both "transformative and conservative at the same time" (p. xvii), and they caution against the precipitous embrace of reformers who may derail incipient revolutions by proposing or legitimating moderate rather than truly revolutionary ideas. Rather, Delgado and Stefancic claim, the answer lies not in heroism but in counterhegemony -- in challenging the insidious influence of legal ideologies and institutions that limit our capacity to imagine and implement radical solutions to society's ills (p. 143). Thus, Failed Revolutions's interpretive stance toward the crusader model of the public interest lawyer is staunchly counterheroic, if not antiheroic, in nature. Even its title's shared use -- with Crusaders in the Courts -- of the term revolution reflects a gap of chasmic proportions between the authors' perspective and Greenberg's; one can infer, without too much of a stretch, that Delgado and Stefancic adjudge the very same civil rights revolution heralded so proudly in the title of Greenberg's memoirs to have been a well-intended but ultimately disappointing failure.

   Despite their markedly different goals and premises, however, both books engage the question of how to use law, legal institutions, and lawyers as agents of social change in the United States. Although Greenberg cautions that Crusaders in the Courts is "a history and not a blueprint" (p. 516) for a new civil rights movement, the overall tenor of his reminiscences reveals a passionate commitment to such an endeavor. Clearly, he hopes that LDF's life story -- as well as his own -- will inspire and provide solace to post-civil rights era reformers. Similarly, Delgado and Stefancic stress that though their critique of the traditional law reform mindset is deeply structural and at times caustically pessimistic, they intend it as a counsel of encouragement rather than despair. They hope to help reformers "persevere even when things look bleakest and victories are longest in coming," and they suggest that through teaching others to "understand the many ways in which we inscribe and reinscribe power and hierarchy, we may perhaps avoid ensnarement by them in the future" (p. xviii). In this respect, therefore, both Crusaders in the Courts and Failed Revolutions seem bound by at least one overarching set of commitments: the advancement of a progressive social reform agenda through creative use of the law(11) and the inculcation of a new generation of lawyers, legal scholars, and judges toward this end.

   Within these broad parameters of similarity, however, the authors' divergent paths loom with stark and intriguing significance. Greenberg stakes a more moderate and optimistic claim for gradual, piecemeal transformation through a combination of targeted impact litigation, moral suasion, and public education. Delgado and Stefancic advance the more radical assertion that such strategies are tepid, limited, delusionary, and ultimately ineffectual in the face of internal psychological and external societal mechanisms that subtly but inexorably stifle truly meaningful change.

   Striking in their differences as well as in their overlapping interests in developing workable law reform strategies for the post-civil rights era, Crusaders in the Courts and Failed Revolutions provide provocative axes of comparison in yet another, although less obvious, respect -- as contrasting opportunities to explore the potential for a nexus between critical legal theory and lawyering practice in both facilitating social change and understanding the hidden deterrents to such change. Although neither book explicitly articulates this interrelationship as a central theme -- and, in fact, Greenberg largely eschews discussion of theory altogether, as opposed to legal doctrine, in his descriptions of LDF's most momentous courtroom challenges -- the potential for a rich connection between critical theory and practice is nevertheless a consideration that infuses both Crusaders in the Courts and Failed Revolutions.

   Crusaders in the Courts, published on the fortieth anniversary of the U.S. Supreme Court's landmark decision in Brown v. Board of Education, takes its place in the burgeoning and fascinating genre of historical chronicles and personal reminiscences of the modern civil rights movement.(12) These works, far from being mere "war stories" or "period pieces," offer much to the reader interested in law reform in this reactionary, post-civil rights era of opposition to antidiscrimination laws and race-conscious remedies(13) because they serve as compelling reminders both of just how recently de jure discrimination reigned in this country and of the role of lawyer and nonlawyer "everyday heroes" in resisting and dismantling it. What these chronicles tend to lack, however -- even those by movement lawyers such as Greenberg and others(14) -- is a theoretical framework within which the authors concretely assess their short-term failures and successes in terms of a long-range vision of social reform. Admittedly, many memoris in this genre do not aspire to such a goal; as Greenberg observes, "I have written, inevitably, from my own perspective, that of a lawyer who is not as detached as a historian nor as engaged as the plaintiffs themselves" (p. xix). Rather, many civil rights retrospectives aim primarily to educate and inspire through the able telling of fascinating stories -- and this itself is no small contribution. Still, after reading an account as voluminous, detailed, and important as Crusaders in the Courts, one yearns for a theoretical context within which to reflect upon Greenberg's description of LDF as "the organization that played a major role -- often the leading role and, at some times, the only role -- in the legal struggle to obtain for black Americans their full civil rights as citizens" (p. xix). If it...