In this concluding Article, let me pick up on some themes that Len Rubinowitz has explored (1) and offer a few comments on the role of civil rights lawyers in general and on Fred Gray in particular. Mr. Gray's epic career can shed important insight into our thinking about what civil rights lawyers do and how much their work matters.
First, Professor Rubinowitz has focused on the work of Fred Gray, Arthur Shores, and Clifford Durr--lawyers based in Alabama who constantly found themselves on the line by doing civil rights work in a dangerous time. (2) He also discusses Robert Carter and Constance Baker Motley, who were based in New York but put themselves at risk when they traveled to the South in connection with their work. (3) This aspect of the article illustrates that lawyers do not have a cloistered existence and can face harassment, ostracism, and worse simply for doing their job.
In honoring the lawyers, we also should remember the courage of their clients. This reflects both the doctrinal rules relating to standing (4) and the reality that litigation is not--an end but a means to achieve broader goals. So let us take a moment to think about the clients--people like Barbara Johns, who at the age of sixteen organized a strike against segregated schools in Prince Edward County, Virginia, in the spring of 1951. (5) That strike led t-o the filing of one of the lawsuits that was decided as part of Brown v. Board of Education. (6)
And to connect this point to our Symposium, let me say a few words about Anthony Lee. I met him during the summer after my first year of college, when we were working 011 a civil rights project in California. We got to talking about our high school experiences, mine in Greater Boston and his in Tuskegee, Alabama. He casually mentioned that he had attended three high schools. Because Alabama's public schools were segregated, he had started in the local black high school. Then, he said, there was a lawsuit, and he got to attend the white school briefly. But die-hard segregationists bombed that school so he wound up at yet a third high school. It was only years later that I learned that Anthony Lee was in fact the lead plaintiff in that lawsuit and that Fred Gray had been his lawyer. (7)
Second, focusing 011 lawyers might imply that those lawyers do only one thing: litigate 011 behalf of clients. This raises several complex issues. For example, there is the question about whether the lawyer or the client controls the litigation (what Derrick Bell famously called the interest-convergence dilemma (8) and what segregationists called barratry--Fred Gray faced such baseless charges during the Montgomery bus boycott, (9) and the Supreme Court later rebuffed similar claims in NAACP v. Button (10)).
More important, the focus on the lawyer only as litigator buys into an oversimplified distinction between litigation and mobilization (or direct action) that lies at the root of some critiques of civil rights lawyering. We see this distinction most clearly in Gerald Rosenberg's influential work. (11) Rosenberg argues that the judiciary is constrained by the conventions of legal reasoning, their lack of independence from the political branches, and their limited resources. (12) Courts, therefore, can serve as effective agencies of social reform only under extremely limited conditions, such as when other actors are able to provide benefits for compliance or impose costs for noncompliance, when market-oriented implementation is feasible, or when court decisions provide leverage or protection for officials and private persons or entities that are willing to act. (13) He further contends that none of those conditions existed in connection with civil rights litigation and that, if anything, Brown v. Board of Education was counterproductive by stimulating resistance in the white South. (14) Instead, Rosenberg urges, racial progress arose from political developments and direct action that had nothing to do with Brown and other civil rights litigation. (15) The Civil Rights Act of 1964 (16) and the Voting Rights Act of 1965 (17) resulted from activism that was unrelated to Brown and other lawsuits: the sit-ins. Freedom Rides, and protest demonstrations in Birmingham and Selma that were inspired by the Montgomery bus boycott, which had its roots in earlier organizing efforts. (18)
Rosenberg's analysis has generated intense debate. Some critics challenge some of his factual claims. For example, Michael Klarman, who agrees that Brown had limited direct impact on desegregation, observes that the massive resistance to the Supreme Court ruling in much of the South actually hastened the demise of segregation. (19) He maintains that Brown drove southern politics so far to the right that the rest of the nation had no choice but to confront white defiance. (20) This so-called backlash accelerated the social, economic, and cultural trends that would have led to the end of segregation, albeit several decades later. (21) Other scholars dispute Rosenberg's contention that Brown did not inspire activists like Dr. Martin Luther King, Jr., Ralph Abernathy, and other less celebrated...