1. COURTS AND SOCIAL CHANGE Fall 2011 – LSTU E-107 Dr. Akiba J. Covitz Associate Dean Harvard Law School CLASS 12 December 8, 2011

2. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 2 Book Reviews -- Due no later than Monday, December 12. -- Three, single-spaced pages; not more than that (one-inch/standard margins and 12 pt/font size). -- These are book reviews, not book reports. I want your educated views on these books. -- A few paragraphs reviewing the basic argument of the book. -- A few paragraphs focusing on how the book addresses the specific issue of courts and social change. -- A few paragraphs reflecting on how the book influenced your views about the role of courts in bringing about social change. -- No need to do outside research. Housekeeping

3. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 3 Overview –http://www.youtube.com/watch?v=TTGHLdr-iakhttp://www.youtube.com/watch?v=TTGHLdr-iak –Speech: http://www.law.harvard.edu/news/2010/05/27_klarman.htmlhttp://www.law.harvard.edu/news/2010/05/27_klarman.html –Mike’s background: –Robert Jackson and Felix Frankfurter; conflicted –http://www.youtube.com/watch?v=uTtx4Zgf-XAhttp://www.youtube.com/watch?v=uTtx4Zgf-XA –Introduction: Before Brown, walls of segregation already beginning to crumble; lynchings on decrease; Should they have waited? Cold War Relative importance of legal and extralegal factors Moderate stance: judicial decisionmaking is a combination of legal and political factors Klarman

4. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 4 Overview –Arguing for a middle ground (pp. 6-7) –Have to look at direct and indirect effects Easily measureable change But also –Salience of an issue –Educating opinion –Motivating supporters –Energizing opponents Litigation itself (independent of court opinions) can also have effects –A form of social protest, like street demonstrations Klarman

5. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 5 Overview –http://www.law.harvard.edu/faculty/directory/ index.html?id=534http://www.law.harvard.edu/faculty/directory/ index.html?id=534 –http://www.youtube.com/watch?v=yfWzIvEIZ Akhttp://www.youtube.com/watch?v=yfWzIvEIZ Ak Tushnet

6. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 6 Overview –Starts with Plessy –Litigation is a social process –Moorfield Storey; first president of NAACP –Senator Charles Sumner’s personal assistant; HLS; 1917 case; Louisville segregation block by block; president of the ABA –Litigation later did not come from nowhere –NAACP emphasizing litigation as early as 1920s –Garland Fund; 1919; Harvard undergrad; $1 million; Roger Baldwin; James Weldon Johnson on board of fund AND leading NAACP; –Roger Baldwin; Brahmin; father’s lawyer was Brandeis; wanted ACLU to be an elite organization; not mass movement; economic focus Communist/radical; racists will be racists no matter what the law says Tushnet

7. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 7 Overview –Baldwin wants to focus on economics, unions, political change –Garland Fund supports early studies of disparities in expenditures on funding for public schools in late 20s –Baldwin wants to focus on economics, labor, and not law –Du Bois pushes against litigation; toward self-sufficiency; resigns from NAACP –Ralph Bunche; court victories could be hollow; Con is flexible; bends to ruling elite; wants allegiance, alliance with white working class –Margold or Houston to lead?; Margold chosen; Houston setting up Howard LS –Margold argues for a direct strike at the source of the discrimination; no focus on community mobilization –Houston argues for both fronts –Switch from white to black lawyers; key to community mobilization Tushnet

8. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 8 Overview –Houston reluctantly chosen as leader –Houston moves to use litigation as a tool for organizing political support, blacks, especially in the South –Order of operation of attack: 1) Segregated higher education 2) Equalize teacher salaries 3) Fnally, attack on segregated primary and secondary education –Begin with professional schools; not public schools, counter to Margold’s recommendation –Local support; this is the second necessity for a successful litigation campaign, after a well thought out litigation strategy; one may preclude the other –Marshall waits to mobilize local support before beginning attack on public primary and secondary schools Tushnet

9. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 9 Overview –On the courts and social change front: Court’s actions facilitated the consolidation of the New Deal/Great Society coalition; undermines Southern Democrats; governing coalition (LBJ) leaves office; NAACP has become connected to the structures of that administration/coalition Part of broader movement; Jackie Robinson (1947); Post-Nazi/Cold War; Truman Committee (1947); Strom Thurmond and Dixiecrats in 1948 Success ultimately depends on community support on many levels (p. 154) Litigation effort part of a larger mosaic of the country’s transformation in race relations (p. 163) Downsides?; schools themselves; baseball; newspapers; communities; but churches remain Tushnet

10. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 10 Overview –On the courts and social change front: Key elements of a long-term collaboration between the SCOTUS and the New Deal/Great Society coalition; changed that forever; can’t go back; double-edged Spate of planned litigation campaigns; peter out by end of 20 th Century; conservative judicial climate dampens things Klarman is persuasive, says Tushnet; moderates were pushed out; extremists in; violence ensues; But then... northern whites appalled; turn against South; push for civil rights litigation Civil rights leaders do rarely mention Brown; don’t need damn Earl Warren to tell them there is a problem; what they do need is hope, a hint that their activities will lead to success Tushnet

11. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 11 Overview –On the courts and social change front: Klarman and Tushnet agree that Brown facilitated a sense that success is feasible Role that courts can play IS limited; but critics miss the intermediate level: where politicians used the courts to promote civil rights; where it meshes with their interests; only possible post-Brown Counter-majoritarian question and Frankfurter; why did he go rogue/activist?; he was restrained otherwise; cannot abide the injustice when it comes to race The articulation of leading principles is not trivial (p. 179) Horwitz: Brown revived the EPC; spread beyond race to cover other outsiders in society; even Burger and Rehnquist Courts extend analysis to women; CRA of 1964; same principle; that’s the result of Brown Tushnet

12. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 12 Overview –On the courts and social change front: Also further bonds blacks to Democratic Party; had begun in New Deal 1968: End segregation now; Green v. New Kent County (p. 183) Leads from Brown to busing Controversy but change; resistance is change in some ways SCOTUS collaborates in the articulation of principles animating the constitutional order Brown, and everything that goes along with it, helps us see the operation of the Constitution over time Tushnet

13. Harvard LSTU E-107 - Fall '11 Class 12 - © Akiba J. Covitz 2011 13 For Next Class December 8: Assignments: 1)Klarman 2)Tushnet 3)Book Reviews due by Monday, December 12 4)Review Sheet for Final to i-site on Friday, 12/9 5)Final on 12/15