Success Without Victory

Lost Legal Battles and the Long Road to Justice in America

Jules Lobel

• Publisher: NYU Press
• Year: 2006
• ISBN:
  9780814765128
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Winners and losers. Success and failure. Victory and defeat. American culture places an extremely high premium on success, and firmly equates it with winning. In politics, sports, business, and the courtroom, we have a passion to win and are terrified of losing.

Instead of viewing success and failure through such a rigid lens, Jules Lobel suggests that we move past the winner-take-all model and learn valuable lessons from legal and political activists who have advocated causes destined to lose in court but have had important, progressive long term effects on American society. He leads us through dramatic battles in American legal history, describing attempts by abolitionist lawyers to free fugitive slaves through the courts, Susan B. Anthony's trial for voting illegally, the post-Civil War challenges to segregation that resulted in the courts’ affirmation of the separate but equal doctrine in Plessy v. Ferguson, and Lobel’s own challenges to United States foreign policy during the 1980s and 1990s.

Success Without Victory explores the political, social, and psychological contexts behind the cases themselves, as well as the eras from which they originated and the eras they subsequently influenced.

1
Introduction
Losers, Fools, and Prophets

ON A BRIGHT, sunny November morning in 1990, my fellow lawyer Michael Ratner and I stood on the steps of the Federal District Courthouse in Washington, D.C., listening to members of Congress explain why they were suing the president of the United States to prevent him from going to war against Iraq. More than a hundred national television newscasters, radio commentators, newspaper reporters, and free-lance journalists thronged the patio below us, but they appeared little interested in the constitutional issues that Michael and I were poised to explain. Instead, their eager, zealous questions to us and the legislators we represented focused on one issue: Could we win?

The journalists’ concern reflected a deeply rooted American value on winning—the belief that, as Vince Lombardi once put it, “Winning isn’t everything. It’s the only thing.”¹ And any realistic, rational, hard-headed American could easily see that Michael and I had only a slightly better chance of winning in Court than of having God suddenly appear in Washington to halt the impending war. What did we think we were doing?

Since that fall day, I have been intrigued by—even plagued by and obsessed with—the question of what “success” means. American culture constantly identifies success with winning and draws a sharp line between victory and defeat. In politics, business, and sports, we have a passion to win and a terror of losing. Professional sports leagues eliminate tie games, preferring clear winners and losers. The American entrepreneurs who brought European soccer to this country changed its rules to avoid dreaded ties. Our political elections are based on a winner-take-all model, unlike those in many European nations that prefer proportionate representation. Our law eschews mediation, where both parties give a little and receive something in return, preferring a courtroom drama designed to produce clear winners and losers.

In contrast, I seem to thrive on losing. With equally “unsuccessful” colleagues in places like the Center for Constitutional Rights, a nonprofit law firm that works on issues of international human rights, civil rights, and social justice, I’ve litigated an impressive number of lost cases. My brilliant losing streak on behalf of what I consider to be important political causes has caused me to ponder the winning metaphor in American life and, more specifically, in American law. Why do we remember Clarence Darrow, F. Lee Bailey, and the mythical, always victorious Perry Mason, yet forget great losers like Albion Tourgée, who unsuccessfully litigated Plessy v. Ferguson? Is there such a clear line between winning and losing, success and failure, or is reality more complex? Are success and failure really mutually exclusive, as we’re taught, or do they exist in dialectical relationship to each other?

Most of my thinking about these issues grows out of a quixotic, decade-long effort, undertaken by the Center for Constitutional Rights (CCR) in conjunction with the National Lawyers Guild (NLG) and other legal groups, to litigate against U.S. military and economic intervention abroad in the 1980s. The Center, founded in 1966 by several civil rights lawyers, views as its mission the development of creative legal strategies to serve progressive political movements. Similarly, the National Lawyers Guild, founded in 1937 as the nation’s first racially integrated bar association, is dedicated to the need for basic change in the structure of our political and economic system. During the Reagan and Bush presidencies, the lawyers at CCR, working with NLG and other lawyers, applied the creative approaches they had learned from the domestic civil rights struggles to challenge U.S. foreign policy in the courts.

This band of progressive lawyers brought almost a dozen cases challenging the U.S. government for sending military advisors and aid to El Salvador; launching a covert contra war against Nicaragua; prohibiting travel to Cuba; invading Grenada; and planning to attack Iraq without congressional authorization. We litigated on constitutional grounds, on international-treaty grounds, with innovative human-rights uses of old tort laws, and in almost every way we could dream up. We brought in co-plaintiffs from Congress, co-counsel from leading legal organizations, and students from prestigious law schools, all of us working around the clock. We joined with community groups and activists, carried out media and educational campaigns, and organized politically around our cases. Our foreign-policy litigation became a sort of Sisyphean quest as we maneuvered through a hazy maze cluttered with gates. Each gate we unlocked led to yet another that blocked our path, with the elusive goal of judicial relief always shrouded in the twilight mist of the never-ending maze.

Over the years, we were spectacularly unsuccessful in court. With a few exceptions, we lost every case we litigated.

By 1991, I was an experienced, accomplished, and well-polished loser. I turned forty, had a child with a serious disability, and avoided to some degree the quest to reflect on what, if anything, we had accomplished during those intense, exciting years of the 1980s. I wanted to understand not simply why we lost but what the value of our losing might be and what our legal battles might teach us about the bigger values of “success” and “failure” in our culture.

The mainstream legal milieu in which I taught and practiced law offered relatively easy answers. Losing cases have no effect on the law, which is seen as a collection of rules and precedents. While lawyers might have some respect for well-crafted losing arguments, most of them can’t be bothered with lost causes.

Even within the law-reform community, many, such as the former NAACP Legal Defense Fund general counsel Jack Greenberg, argue that the main result of losing cases is the creation of bad legal precedent and that, therefore, test cases generally “should not be brought if they are likely to be lost.”² My friend and fellow progressive lawyer Michael Krinsky once questioned whether our losing foreign policy cases “had the effect of validating the government position.”

This prevailing view of the law is utilitarian, as is the dominant American view of success. To succeed means to win concrete results, to change the legal rules, to win damages for your client, or to obtain a court injunction. The utilitarian perspective is premised on a sharp divide between winning and losing, which in turn relies on a separation of law and politics. The success of a lawsuit under traditional doctrine depends on its legal result, not on any subtle and nuanced political effects it might create. The traditional lawyer seeks to win some judgment for her client, the law-reform litigator to achieve some structural change through a successful court challenge. While traditional public interest litigation may use concurrent political action to create a favorable climate for court victory and to implement that victory, it considers politics only a predicate to the courtroom drama.

In our losing efforts, however, we took a different view. First of all, the primary point of many of the cases we litigated was to inspire political action. While we believed that the law was on our side and hoped the courts would agree, we used law not merely to adjudicate a dispute between parties but also to educate the public. Even though the political contexts of our challenges made courtroom success highly improbable, we persevered because our purposes were broader than victory alone. We were speaking to the public, not just to the court.

But, while we tended to use political action, not courtroom victory, as a marker for success, I have always been unsatisfied with justifying these cases as political agitation or defending our choice to persevere on purely political grounds. Some law-reform litigators ask whether the time and energy we spent on these cases could have been better expended on more productive political activities. As one lawyer friend recently claimed, “You wasted a lot of time, energy, and legal talent,” litigating these hopeless cases. Other scholars, including many associated with the Critical Legal Studies Movement, question whether reliance on courts and litigation unduly narrows and restricts the political movements we sought to aid and even legitimated the very system we were challenging. So, while I believe our cases did help inspire public debate, dialogue, and political action in positive, albeit limited ways, I still had to question whether political “success” was any more valid as a criterion than legal success.

As I pondered these issues, I began instead to reevaluate the philosophical utilitarianism itself that underlies the mainstream view of success in law and life and to look at different traditions that critique it.

One view, perhaps expressed best in our country by Ralph Waldo Emerson and Henry David Thoreau, replaces “success” with expressive individualism, a kind of self-reliance that doesn’t depend on the rewards of the outside world. In this view, work is a calling, an expression of oneself, and a way to cultivate moral sensibilities, not merely a utilitarian activity that leads to winning. “[We should] measure a person not primarily by the virtue of his actions,” writes Thoreau, “but by the free character he is and is felt to be under all circumstances.”³ Their focus on the inner, expressive self led Emerson and Thoreau to view success and failure not as dichotomies but as existing in dialectic tension and unity. “My entire success, such as it is,” writes Emerson, “is composed wholly of particular failures.”⁴

The Emersonian self-expressive mode has informed a tradition of American protest. In recent times, the example of Derrick Bell comes to mind: the distinguished legal scholar sacrificed his teaching job at Harvard Law School in protest over its refusal to hire a black woman professor. As Bell wrote, “At its essence, the willingness to protest represents less a response to a perceived affront than the acting out of a state of mind.... Often, the desire to change the offending situation which is beyond our reach may be an incidental benefit and not the real motivation. Rather, those of us who speak out are moved by a deep sense of the fragility of our self-worth. It is the determination to protect our sense of who we are that leads us to risk criticism, alienation, and serious loss while most others, similarly harmed, remain silent.”⁵ In a similar vein, when former Supreme Court Justice William Brennan was questioned about the utility of his repeated dissents opposing capital punishment, he proffered not a utilitarian defense but an explanation that these dissents were expressions of his own conscience; his main purpose in writing them was to define himself and not to change society.⁶

For many of us who struggled in losing cases for decades, convinced of the morality and justice of our cause, it never really occurred to us to do anything different; our lives’ meaning was precisely in carrying out this calling, whether it led to success or failure. We spent thousands of hours trying to succeed—we wanted to succeed—but our motivation was self-expressive and lay in the fight itself. My own moral and ethical outrage at the U.S. government’s actions in Central America, for example, and my feelings for the victims of those actions compelled me to act. I had talked, made friends, and fallen in love with people whom I wanted to help. I was a lawyer, so I utilized my legal skills to express this desire. I did not undertake the calculations of a tort attorney as to the likely outcome of any case: it was the very act of challenging the injustice that I felt gave meaning to my life.

Yet, this self-expression rationale, a powerful antidote to the success culture of America, left me dissatisfied. For many years I had focused on working to better society, and I remained troubled by focusing on the self to justify what I did. The Emersonian critique, insightful as it was, still was an individualist one; although it extolled the expressive self rather than the ambitious, achieving self of the success-mongers, it was still an uncomfortable position for me to take. I wanted to look more deeply at community, not individualism, as a way to step outside the prison of winning and losing.

Digging deeper for answers, I began to look back to history, culture, tradition, and my own roots. I began with the uniquely American tradition of radical movements that sought to litigate their aspirations in court. Throughout the nineteenth century, litigation as a means of protest was common—and most of those early litigators were losers.

Virtually hopeless test cases brought to challenge unjust policies is a recurring thread in the tapestry of American law. Radical abolitionists challenged aspects of slavery in American courts in the 1840s and 1850s, to no avail. Members of the post-Civil War women’s movement advocated a broad interpretation of the Fourteenth Amendment and litigated women’s rights in the 1870s in a series of cases that were uniformly unsuccessful. Plessy v. Ferguson was a test case brought in the 1890s by several civil rights lawyers who had strong doubts about their chances for success in that period of reaction.

One hundred years ago, Albion Tourgée, the lawyer who argued for Homer Plessy before the Supreme Court, agonized over issues of success and failure. In his best-selling autobiographical novel, titled A Fool’s Errand, Tourgée argued that an individual is often both a fool and a genius, with only history’s thin line separating the two. For Tourgée, there was no inherent difference between success and failure, prophecy or foolishness: historical circumstance was the determining factor.

In our era, I found others who continued the tradition of the nineteenth-century litigators like Albion Tourgée and struggled not simply for self-expression but in order to protest and to build movements. Most of them were losers, too. Labor activists have proposed innovative theories of employee property and contract rights to avert plant closings, although courts thus far have given these theories short shrift. Countless lawsuits challenged the constitutionality of the U.S. war in Indochina, with meager results. Lawyers for Haitian refugees sought to enjoin the Coast Guard’s interdiction and return of Haitians, knowing that the Supreme Court was likely to uphold the government’s policy.

This is the tradition of which I began to feel part. These cases have helped to create a community and a culture dedicated to litigating the constitutional aspirations of oppressed groups. Paradoxically, that culture survived and persisted in spite of, or maybe even because of, the failure in courts. Or, to put it differently, the current commitment of civil rights groups, women’s groups, and gay and lesbian groups to a legal discourse and to legal activism to protect their rights stems in part from the willingness of activists in political and social movements in the nineteenth century to fight for rights, even when they realized the courts would be unsympathetic. I began to see how communities often gain their identities not in celebrating their victories over oppression but in remembering their defeats.

And I began to see how “failure” could not really be measured adequately by the winner-take-all model of American law. Certainly, on the face of it, the legal tradition I studied was unsuccessful. Many of the early nineteenth-century cases seem to have disappeared from our history, playing virtually no role even when the Court eventually reversed itself decades later. For example, Chief Justice Earl Warren’s opinion in Brown v. Board of Education did not cite Albion Tourgée’s argument in Plessy or even Justice John Marshall Harlan’s ringing dissent in that case. The women’s rights arguments before the Court in the 1870s were never cited or even referred to when those arguments were revived in abortion rights and women’s rights litigation one hundred years later. If success can be measured only by direct result, immediate change, or easily perceived impact, then these earlier cases were unmitigated failures. But, if success can be viewed like the pentimenti of a painting, as an unseen underside necessary to the final perceptible painting, then these cases take on a different hue. Success inheres in the creation of a tradition, of a commitment to struggle, of a narrative of resistance that can inspire others similarly to resist.

The American success culture is invariably concerned with the present, with immediate accomplishments.⁷ In our view of success as individual achievement, we isolate the individual from community and from tradition. A society that so emphasizes success as immediate accomplishment lives almost exclusively in the present, with only tenuous ties to past generations or concerns for future generations.

An alternative model of success must place individual actions in the context of history and forge links of solidarity with communities and traditions. Most oppressed peoples have not cultures of success but, rather, cultures of remembrance where individuals view “success” not by present accomplishment but by their tie to past memories and future hopes and dreams. Such communities of memory, writes the sociologist Robert Bellah, tell “painful stories of shared suffering that sometimes create deeper identities than success.”⁸

For example, African American culture in the United States has developed in large part out of the unifying shared memories of oppression and resistance. The historian Vincent Harding writes that the terrible vision of a black man being killed becomes a symbol and a source of truths for the future. For Harding, “the river of struggle” is the connection between blacks living today and the history of the African American people, and it is within the context of that river that the failed slave revolts, the unsuccessful individual acts of resistance to slavery, and the losing legal resistance to slavery can all be understood.

My own Jewish culture and heritage provide another example of this tradition. The most powerful symbol of my childhood was standing for a moment of silence at the Passover Seder to remember the Warsaw ghetto uprising that commenced on Passover night in 1943. The narrative of the Jewish Warsaw ghetto uprising against the Nazis might be interpreted as a reminder that overwhelming force prevails against poorly armed resistance fighters or that the Jews were abandoned by the Poles and Allied nations. However, the message I took away from those Seders is that people can struggle even when faced with overwhelming odds and that, through struggle, they may achieve a spiritual victory over their oppressors.

I found links with that popular tradition in the action of lawyers like Helmuth James von Moltke, a German who was legal adviser to the High Command of the German Armed Services until he was executed by the Nazis in 1945. In battle after losing legal battle to protect the rights of Poles, to save Jews, and to oppose German troops’ war crimes, he made it clear that he struggled not just to win in the moment but to build a future: “The most irritating part,” he wrote, “is that I consider all the work being done now as having no chance. But it has to be done with all due care all the same, so that others, and we ourselves, can...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• 1 Introduction: Losers, Fools, and Prophets
• 2 Can Law Stop War? The Constitution and Iraq
• 3 A Tradition of Resistance: Antislavery Litigators and the Fight for Freedom
• 4 “A Fine Agitation”: Women’s Suffrage Goes to Court
• 5 Plessy v. Ferguson: The Fool’s Last Battle
• 6 Plant-Closing Litigation: “Youngstown Sure Died Hard”
• 7 Politics versus Law: Were Travelers to Cuba Trading with the Enemy?
• 8 Challenging United States Intervention in Central America
• 9 End of an Era: Fighting U.S. Action in Kosovo
• 10 Conclusion
• Notes
• Index
• Series List
• About the Author