Lost Legal Battles
Success Without Victory: Lost Legal Battles and the Long Road to Justice in America
By Jules Lobel,New York University Press, 2003. 269 pages, $23
Review by Heidi Boghosian
African-American slave descendants filed a historic class-action lawsuit in 2003 seeking reparations from 19 bluechip companies, maintaining continued indignities and negative repercussions from the legacy of slavery. After the case was dismissed, plaintiffs announced plans to appeal, if necessary to the Supreme Court. Facing little likelihood of success, is their pursuit of reparations pointless? Or is it prophetic, propelling an injustice into the courtroom and into the public’s conscience ahead of its time?
In his remarkable book, Success Without Victory, Jules Lobel reveals how the drive for justice has impelled lawyers and activists to the courtrooms and sustained them in litigating unpopular issues, often against all odds. An indispensable tool of these justice-fighters was test-case litigation. Lobel, law professor at the University of Pittsburgh Law School and Vice President of the Center for Constitutional Rights, describes the roots of test-case litigation in the United States abolitionist movement when, again and again, several tenacious lawyers challenged the prevailing notions that Blacks were property and women could not vote. Each time they lost. Knowing they stood little chance of winning in court, these constitutional trailblazers still fought to overcome the disenfranchisement of women and Blacks. In doing so, these resolute “losers” left two legacies: they engendered the now deep-seated view that the courtroom provides a forum for testing the constitutionality of existing laws, and they read the Constitution as granting natural rights to liberty and equality. Time has shown their wisdom: today, slavery is illegal and women have the vote.
An indictment of the American fixation on winning and on short-term solutions, Success Without Victory rejects the culture's tape measure for success. "The utilitarian [American] perspective is premised on a sharp divide between winning and losing, which in turn relies on a separation of law and politics," writes Lobel, persuasive in his view that success and failure are not opposites but are interconnected and that success is best understood in a historical context. This definition of success is more personal and ultimately more relevant to humanity: success must be measured by how one lives out his or her values, perseveres against enormous odds and stands up for principle even when defeat seems inevitable. Through an intimate lens Lobel exposes the stories of individuals whose lives were made of rare moral fabric and who created a tradition, "…a narrative of resistance that can inspire others similarly to resist."
From highly engaging accounts emerges a standard for bringing “movement” lawsuits, as Arthur Kinoy, role model to many progressive lawyers and activists—including Lobel—articulated in his book Rights on Trial: what role would the lawsuit play in advancing the people’s struggle? In answering that question, activists and attorneys weighed the possibility of establishing bad precedent against the chance of righting societal wrongs.
Lobel writes of nineteenth century attorneys Alvan Stewart and Salmon Chase who brought lawsuits that met the Kinoy standard. Each left successful, traditional law practices to challenge the constitutionality of the Fugitive Slave Act. They used the courts to organize a political anti-slavery movement and to put forth theories that incorporated a natural right to freedom into constitutional doctrine. Their then-radical views met with failure after failure in the courts, but had long-term impact on both public opinion and the law. Their litigation helped mobilize northern public opinion against slavery and their doctrines influenced concepts later incorporated in Section I of the Fourteenth Amendment. Substantive due process, equal protection, paramount natural citizenship and privileges and immunities derive from their tenets. They fostered a legal culture that paved the way for other radical movements, such as women's suffrage, to use the courts to advance the interests of the minority and to bring issues into the public discourse. And they began to establish a record of resistance.
Jules Lobel takes his rightful place alongside the line of lawyers opting for the difficult path of bringing contentious issues into the public forum. He too has been driven by an undoubting faith in the possibility of change, understanding that justice may not be realized in his lifetime. Working with the Center for Constitutional Rights and the National Lawyers Guild, Lobel has fought for years to actualize the guarantees of the Constitution. He has challenged presidential usurpation of war powers and U.S. intervention in the former Yugoslavia and in Central America. In Dellums v. Bush, he served as lead counsel representing Congressman Ronald Dellums and 53 other members of Congress who contested George H.W. Bush’s efforts to go to war in 1991 without Congressional consent.
The Dellums decision--while not ordering the President to go to Congress -- told the President he could not go to war without Congressional approval and chided Congress for abrogating its responsibility and for refusing to vote on Bush's war. This gave the plaintiffs something they hoped to accomplish by bringing the lawsuit – stimulation of political action. Because the decision applied legal and political pressure on the President, Ron Dellums deemed the lawsuit a success:
"The lawsuit brought our struggle front and center, brought the Constitution front and center, and brought the Persian Gulf buildup front and center. Judge Greene's holding that 'the Court is not prepared to read Congress' powers out of the Constitution' gave us momentum to force Bush to come to Congress. Everyone felt buoyed by the decision."
Highly personal accounts of test-cases, and the people behind them, animate Success Without Victory. Each story is individually stirring, from plant closings to Cuba travel to young engineer Ben Linder who dreamt of teaching Nicaraguans to build and operate their own power plants until he was ambushed and killed by U.S.-funded contras. Collectively, these stories are an evocative reminder that people who challenge unconstitutional laws play an essential role in vitalizing democracy. For anyone who underestimates the power of the courts to awaken the public's conscience, this book reaffirms the value of persistence and courage in standing up for one's convictions and asserting, in Ron Dellums' words: "I am a citizen and I will be dealt with."