Success Without Victory: Lost Legal Battles and the Long Road to Justice in America.

Vol. 14 No.10 (October 2004), pp.816-818

SUCCESS WITHOUT VICTORY: LOST LEGAL BATTLES AND THE LONG ROAD TO JUSTICE IN AMERICA, by Jules Lobel. New York: New York University Press, 2003. 336pp. Hardcover. $34.00. ISBN: 0814751121.

Reviewed by Charles R. Epp, University of Kansas, chuckepp@ku.edu.

The new book by Jules Lobel, one of the lead litigators for the Center for Constitutional Rights during the 1980s and 1990s, provides a sustained justification of litigation in hopeless political causes. By hopeless, Lobel means truly hopeless: the book focuses on cases that, by any objective standard, had no reasonable chance of victory in court. The book covers antebellum litigation against slavery, women’s suffrage litigation after the Civil War, PLESSY v. FERGUSON, and Lobel’s own efforts to place checks on unilateral presidential war powers, among other causes.

The book is timely. The tide of scholarly opinion seems to have turned against the use of litigation for social change: the increasingly conservative federal courts and disillusionment with the long-term impact of BROWN and other Warren Court landmarks contribute to a new reigning cynicism about law and lawsuits. Yet a surprisingly wide and fertile range of local groups and social movements continue going to court, even when their causes seem hopeless. Many observers say, from the sidelines, that such groups would be better off focusing their efforts in other areas, among them grassroots organizing. Lobel’s first-hand account both speaks to the scholarly debate and provides a very accessible teaching tool for undergraduate courses.

Lobel’s thesis is simple: pursuing litigation even in the face of near-certain defeat is justified by its contribution to “a community of resistance and memory” against injustice and oppression (p.32). In making this argument, Lobel positions himself in the tradition of the Biblical prophets engaged in a lonely call for justice. His heritage as a secular Jew raised in the shadow of the Holocaust gave him, he says, a strong respect for human rights and a sense of empathy for oppressed peoples. Although much oppression seems virtually permanent, one must hope and work for eventual liberation, Lobel argues, and lawsuits may be both ways of keeping hope alive and tools for developing oppositional ideas and arguments. “[I]f justice is the mighty stream of struggle against oppression,” he suggests, “then losing efforts constitute some of the myriad rivulets that constantly feed that stream and inspire further struggle” (p.9).

As Lobel’s analysis illustrates, although lawyers in a number of lost causes initially faced insurmountable legal and political odds, their arguments contributed to long-term changes in American constitutionalism. The early abolitionist litigators, for instance, sued not only to gain the freedom of recaptured slaves (an effort in which they occasionally succeeded), but also to challenge the basis of slavery itself. Their broadest arguments, Lobel [*817] observes, were ludicrously out of step with contemporary law, yet the lawyers persisted. Lobel’s key figures in this story are Salmon Chase, “Attorney General for Runaway Slaves” (p.53) and eventually Treasury Secretary and Supreme Court Justice, and Alvan Stewart, an abolitionist lawyer who challenged the lawfulness of slavery before the New Jersey Supreme Court. Chase’s and Stewart’s legal arguments, although unsuccessful in court, contributed key elements to the development of a rights-based constitutionalism. Their briefs, for instance, fed Albion Tourgee’s argument in PLESSY v. FERGUSON, which, in turn, was read with approval by Justice Jackson at the height of Supreme Court consideration of BROWN (pp.110-115). And, long before any real hint of judicial sympathy for civil rights plaintiffs, the Margold Report to the NAACP observed that civil rights litigation had “the psychological effect upon Negroes . . . of stirring the spirit of revolt in them” (quoted, p.119). Evaluating the ultimate success of a lawsuit, Lobel concludes, is never simple and, ultimately, must await the long-term judgment of history.

The book also provides riveting descriptions of the motivations of litigators in lost causes, often in their own words. Although Lobel’s “resistance and memory” justification favors hard-headed realism about the short term, many of the quixotic litigators at the heart of the book seem almost delusional in their hopes for courtroom victory. Thus, both Chase and Stewart apparently truly believed that appellate courts might accept their arguments against the constitutionality of slavery – even though nearly every other observer at the time knew otherwise. Similarly Tourgee was egotistical and grossly overconfident in his capacity to persuade the Supreme Court to strike down segregation. Lobel himself acknowledges succumbing at one point to an egotistical belief in his capacity to place checks on unilateral presidential war powers (see, e.g., pp.251ff). Unrealistic hope thus seems to be at least a partial explanation for litigating lost causes: Lobel’s longue duree justification is not enough motivation.

Yet, at the same time, Lobel provides examples of lost-cause litigators who acknowledged the likelihood of defeat and were motivated by longer-term goals (see, e.g., pp.218, 226). One of Lobel’s more compelling examples is, surprisingly, Tourgee. Long before PLESSY, Tourgee had joined with other abolitionists in attempting to reconstruct the South after the Civil War. After the collapse of Reconstruction, he published, in novel form, a frank reflection on the merits of opposing the powers that be. In the book, titled A FOOL’S ERRAND, Tourgee argued that “fools” – those who see the world differently than their conventional fellows – and “prophets” are distinguished only by whether history has vindicated their oppositional vision (pp.106-107). Tourgee published the novel under a pseudonym, “One of the Fools;” in retrospect, his voice now appears prophetic.

Lobel clearly hopes that his extended campaign to subject presidential war powers to the rule of law will be seen in some future day as similarly prophetic. The key cases were, of course, utter failures. Some day in the future, Lobel predicts, presidential hubris in war will lead to a disastrous over-reaching, [*818] creating the conditions for true checks on this awesome power. When that happens, Lobel is not sanguine that his efforts will have contributed directly to those checks: his cases will likely be seen only as “premonitions” (p.267). Yet he maintains the hope that those cases have contributed to a community of resistance against unilateral war-making.

Lobel’s defense of litigating lost causes also takes on some of the arguments against their value, although only in passing. To the argument that effort might better be put more directly into building a social movement, he argues that litigation is best pursued in conjunction with a social movement and that, in such a context, the lawsuit may serve movement-building purposes. Here his argument echoes the work of Michael McCann. To the argument that pursuing a losing case only creates bad precedent that blocks change, Lobel argues, interestingly, that bad precedent is sometimes the best motivator for a long-term effort at social change. Thus Thurgood Marshall observed that PLESSY was “what made me go to law school. PLESSY took our rights from us and therefore we had to overcome PLESSY” (p. 119). Although Lobel’s examples are all drawn from the political left, his argument regarding the mobilizing effects of “bad” precedent immediately brings to mind the use of ROE v. WADE by the anti-abortion movement.

I suspect that this book may be very useful in undergrad courses (unfortunately, its current availability only in hardback limits that possibility). It is highly readable, includes fascinating stories centered on powerful personalities (e.g., Salmon Chase, Susan B. Anthony, Staughton Lynd, among others), and the sustained reflection on unilateral presidential war-making powers is timely. The book also provides a thought-provoking counterpoint to Rosenberg’s THE HOLLOW HOPE. As a discussion-starter, it offers many possible points of departure. For instance: the more a legal brief is narrowly crafted for conventional courtroom victory, Lobel suggests, the less valuable is its contribution to popular constitutional discourse and long-term constitutional change (p.204). That hypothesis, of course, steps far outside conventional social scientific discussions of courts and politics – and therein lies the book’s key value. SUCCESS WITHOUT VICTORY is thoughtful and provocative, and I highly recommend it.

REFERENCES:

McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

ROE v. WADE, 410 U.S. 113 (1973).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

************************************************************