Litigating Against the Civil Rights Movement

Abstract

Legal scholars have long been fascinated by the use of litigation as a tool for social change, but they have given relatively less attention to the use of litigation as a tool to oppose social change. This Article offers a case study of the role of litigation in one of the most prominent battles against social change in modern American history: the campaign of southern whites to oppose the civil rights movement. Through the 1950s and 1960s, as the black freedom struggle gained strength, segregationists litigated on behalf of their cause frequently, aggressively, and often with a remarkable sense of optimism for what they hoped to achieve. This case study illuminates not only an under-studied part of the movement’s legal history, but also the particular value of litigation for social movements whose primary goal is to thwart or slow broader political and legal changes. My study of segregationist litigation reveals a two-stage litigation process. First, a reactive phase: In response to reform litigation challenges, segregationist lawyers demanded the courts stand as bulwarks of legal continuity and tradition in the face of political upheaval, as protectors of stability and order in the face of social unrest. At some point, however, defeats accumulated and the tide turned. Segregationist litigation then evolved into a second, rearguard phase. I show how litigation provided unique resources for defenders of a fading status quo. It delayed change and limited its effects. It undermined the mobilization efforts of civil rights activists. And, in something of an ironic turn, the goals of this rearguard phase — mobilizing supporters, creating new alliances, reframing the terms of the struggle — came to look more and more like the vanguard litigation efforts civil rights proponents had pioneered a generation earlier.

Keywords: litigation, segregation, civil rights movement, legal history, legal mobilization