The Rights Revolution

Lawyers, Activists, and Supreme Courts in Comparative Perspective

Charles R. Epp

• Publisher: University of Chicago Press
• Year: 2020
• ISBN:
  9780226772424
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

It is well known that the scope of individual rights has expanded dramatically in the United States over the last half-century. Less well known is that other countries have experienced "rights revolutions" as well. Charles R. Epp argues that, far from being the fruit of an activist judiciary, the ascendancy of civil rights and liberties has rested on the democratization of access to the courts—the influence of advocacy groups, the establishment of governmental enforcement agencies, the growth of financial and legal resources for ordinary citizens, and the strategic planning of grass roots organizations. In other words, the shift in the rights of individuals is best understood as a "bottom up, " rather than a "top down, " phenomenon. The Rights Revolution is the first comprehensive and comparative analysis of the growth of civil rights, examining the high courts of the United States, Britain, Canada, and India within their specific constitutional and cultural contexts. It brilliantly revises our understanding of the relationship between courts and social change.

ONE

Introduction

Sed quis custodiet ipsos custodes? (But who will guard the guardians?)

—Juvenal

On October 29, 1958, at 5:45 in the morning, nine Chicago police officers acting without a warrant forced their way into James and Flossie Monroe’s home, pulled the Monroes and their six children out of bed, and forced them to stand half-naked in the living room while they ransacked the home, dumped out the contents of drawers, tore clothes out of closets, and slit open mattresses. Officer Pape, the leader, beat James Monroe with his flashlight and called him “nigger” and “black boy”; another officer pushed Flossie Monroe; and several officers kicked and hit the children and pushed them to the floor. The officers eventually took Mr. Monroe to a station house, where he was forced to appear in a lineup and was questioned for ten hours about a recent murder. Throughout the ordeal, the officers refused to allow Monroe to call a lawyer or his family. In the end he was released—the victim of a story about a “Negro robber” concocted by the real murderers. The Monroe family sued the officers under a federal civil rights statute, but the federal district court and the court of appeals rejected their right to sue in federal court. In 1961, to the surprise of many, the United States Supreme Court reversed and granted them this right.¹

A few years later a decision like Monroe v. Pape would seem routine. But in early 1961 the Court had yet to establish its reputation as a consistent defender of individual rights against official abuses of power.² Only a few years earlier, for instance, in Screws v. United States, a criminal case brought against a Georgia sheriff who had brutally beaten a black man to death, the Supreme Court overturned the sheriff’s conviction and created a difficult standard for convicting perpetrators of police brutality.³ The sheriff was acquitted on retrial under the new standard. The Monroe decision, by contrast, opened the door to civil lawsuits to redress official abuses of individual rights.⁴

The decision, moreover, was part of a much larger transformation in which the Supreme Court, for the first time in its history, began deciding and supporting individual rights claims in a sustained way. As late as the mid-thirties, less than 10 percent of the Court’s decisions involved individual rights other than property rights; the Court instead devoted its attention to business disputes and often supported property-rights claims brought by businesses and wealthy individuals.⁵ The Court’s attention and support eventually shifted to modern individual rights.⁶ By the late sixties, almost 70 percent of its decisions involved individual rights,⁷ and the Court had, essentially, proclaimed itself the guardian of the individual rights of the ordinary citizen. In the process, the Court created or expanded a host of new constitutional rights, among them virtually all of the rights now regarded as essential to the Constitution: freedom of speech and the press, rights against discrimination on the basis of race or sex, and the right to due process in criminal and administrative procedures. Undoubtedly the depth of this transformation is limited in important ways: some rights have suffered erosion, and, as many Americans know, judicial declarations of individual rights often find only pale reflections in practice.⁸ But as I demonstrate in more detail shortly, the transformation has been real and it has had important effects. This transformation is commonly called the rights revolution.

Why did the rights revolution occur? What conditions encouraged the Supreme Court to regularly hear and support individual rights cases after largely ignoring or spurning them for 150 years? And why, after many years of hearing claims by powerful businesses, did the Court regularly turn its attention to the claims of “underdogs”? In sum, what were the sources and conditions for the rights revolution?

Sources and Conditions for the Rights Revolution

The U.S. rights revolution is usually attributed to one or more of the following: constitutional guarantees of individual rights and judicial independence, leadership from activist judges (particularly Supreme Court justices) who have been willing to use those constitutional provisions to transform society, and the rise of rights consciousness in popular culture. Conventional explanations tend to place particular emphasis on judicial leadership as the catalyst for the rights revolution. Constitutional guarantees, judicial leadership, and rights consciousness certainly contributed to the U.S. rights revolution. This book shows, however, that sustained judicial attention and approval for individual rights grew primarily out of pressure from below, not leadership from above. This pressure consisted of deliberate, strategic organizing by rights advocates. And strategic rights advocacy became possible because of the development of what I call the support structure for legal mobilization, consisting of rights-advocacy organizations, rights-advocacy lawyers, and sources of financing, particularly government-supported financing.

This support structure has been essential in shaping the rights revolution. Because the judicial process is costly and slow and produces changes in the law only in small increments, litigants cannot hope to bring about meaningful change in the law unless they have access to significant resources. For this reason, constitutional litigation in the United States until recently was dominated by the claims of powerful businesses; they alone commanded the resources necessary to pursue claims with sufficient frequency, acumen, and perseverance to shape the development of constitutional law. And for this reason, too, constitutional law and the courts largely ignored the potential constitutional rights claims of ordinary individuals. The rights revolution grew out of the growing capacity of individual rights advocates to pursue the forms of constitutional litigation perfected by organized businesses, but for very different ends. The growth of the support structure, therefore, significantly democratized access to the Supreme Court.

Others have posited, of course, that political pressure and organized support for rights litigation influence judicial attention and approval for civil rights and liberties.⁹ My analysis builds on such research. But what is distinctive about my analysis is its emphasis on material resources, on the difficulty with which those resources are developed, and on the key role of those resources in providing the sources and conditions for sustained rights-advocacy litigation. Many discussions of the relationship between the Supreme Court and litigants assume that the resources necessary to support litigation are easily generated and that, as a result, litigants of all kinds have always stood ready to bring forward any kind of case that the Court might indicate a willingness to hear and decide. But that presumes a pluralism of litigating interests and an evenness of the litigation playing field that is wholly unjustified. Not every issue is now, nor has been in the past, the subject of extensive litigation in lower courts, due in part to limitations in the availability of resources for legal mobilization.

Implications of the Support-Structure Explanation

The support-structure explanation for the U.S. rights revolution is significant for two closely related debates in contemporary politics and constitutional law: (1) whether (or to what extent) democratic processes must be sacrificed in order to achieve protection for individual rights, and (2) how best to protect individual rights in modern society. Many people perceive a deep tension between rights and majoritarian democracy and believe that, if we wish to “guard the guardians” (the police and other public officials), we must turn unaccountable power over to judicial guardians. Some critics have claimed that the Supreme Court’s decision in the Monroe case, for instance, amounts to a judicial usurpation of power because under the Monroe precedent, courts have constrained the discretion of public officials without regard to the wishes of democratic majorities.

The rights revolution, either implicitly or explicitly, is at the heart of the debate over the relationship between rights and democracy. For it was during the rights revolution, according to the advocates of contemporary individual rights, that courts finally began properly defending and protecting such rights. And according to the critics of the new rights, it was during the rights revolution that judicial power grew out of control and eroded the democratic process. Robert Bork, a leading critic of the new rights, has described the rights revolution as “the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically.” Creating rights through judicial interpretation, he declares, is “heresy,” and “it is crucial to recognize a heresy for what it is and to root it out.”¹⁰ His use of the term “heresy” is deliberate, for the key problem, in Bork’s view, is a heretical judicial interpretation of a foundational written text, the Constitution. In the judges’ hands, Bork charges, the Constitution has been transformed from a mechanism for limiting arbitrary governmental power into a source for arbitrary judicial power. As Bork observed, “the Constitution is the trump card in American politics, and judges decide what the Constitution means.”¹¹ This is a judge-centered analysis of the rights revolution, but it also asserts that judicial power depends on constitutional structure.

To a remarkable degree many defenders of contemporary rights accept the judge-centered interpretation of the rights revolution and of rights protection in general; they acknowledge that the rights revolution grew out of fundamentally undemocratic processes. But they defend many of the new rights on the ground that the results, in the end, strengthened democracy.¹² In this view, for instance, the electoral reapportionment rulings of the early sixties¹³ deeply interfered with the democratic political process but did so in order to enhance the fairness of that process.¹⁴

If my thesis is correct, however, the common emphasis on constitutional provisions and judges is exaggerated and the concern about undemocratic processes is ill founded. Of course it is unlikely that a majority of the population, if polled, would have supported each judicial decision in the rights revolution. But many legislative policies could not survive a popular referendum either. The meaning of “democracy” is thus complex and nuanced, and the critics recognize that fact by focusing mainly on the issue of process—claiming that the process of rights creation is judge-dominated and therefore is intrinsically less a result of broadly based action than is legislative policy making.

This book is intended in part to refute that persistent claim by showing that the rights revolution depended on widespread support made possible by a democratization of access to the judiciary. Cooperative efforts among many rights advocates, relying on new resources for rights litigation—financing, organizational support, and willing and able lawyers—provided the raw material for the rights revolution. Many of those resources either were legislatively created or reflected a democratization and diversification of the legal profession and the interest-group system. Neither judges nor constitutional guarantees are irrelevant; judges ultimately decide whether to support rights claims, and constitutional guarantees may become rallying symbols for social movements and may provide footholds for lawyers’ arguments and foundations for judicial decisions. But both the policy preferences of judges and the meaning of constitutional rights are partly constituted by the political economy of appellate litigation, particularly the distribution of resources necessary for sustained constitutional litigation. If the rights revolution developed out of the growth of a broad support structure in civil society, if rights litigation commonly reflects a significant degree of organized collective action, and if judicially declared rights remain dead letters unless they gain the backing of a broad support structure, then the rights revolution was not undemocratic or antidemocratic, even in the processes that created it. And if the evidence and analysis in support of that proposition is persuasive, then critics bear the burden of explaining why we should return to a time when only large businesses and the wealthy commanded the organizational strength, resources, and legal expertise to mobilize constitutional law in their favor.

The support-structure explanation is likewise pertinent to the other rights-related debate mentioned above—how best to protect individual rights in modern society. In the United States, great political battles are fought over judicial nominees. In other countries, some citizens wish for a John Marshall or an Earl Warren (great American Supreme Court Justices) to breathe life into their moribund constitutional law. And constitutional lawyers from the United States jet about the world engaging in “constitutional engineering,” the process of creating new constitutions for other countries—on the assumption that new or revised constitutional structures and guarantees will re-form other societies.

Under the support-structure explanation proposed here, however, proponents of expanded judicial protection for rights should not place all hope in judges or constitutional reform but should provide support to rights-advocacy lawyers and organizations. If a nation—the United States or any other—wishes to protect individual rights, it would do well not to confine its efforts to encouraging or admonishing its judges, fine-tuning its constitution, or relying on the values of popular culture to affect rights by osmosis. Societies should also fund and support lawyers and rights-advocacy organizations—for they establish the conditions for sustained judicial attention to civil liberties and civil rights and for channeling judicial power toward egalitarian ends.

The Genesis of the Support-Structure Explanation

The standard emphases on judges, constitutional text, and popular culture reflect a nearly exclusive focus in past research on the U.S. case. In the United States, liberal judges, constitutional rights guarantees, and growing popular support for individual rights coincided at the time of the rights revolution, and so commentators attempting to interpret or explain the rights revolution commonly looked no further than those influences. But as I started to study the U.S. rights revolution I became aware of similar (or apparently similar) rights revolutions in other countries. In Britain, for instance, a country with a conservative judiciary and no constitutional bill of rights, individual rights nonetheless are gaining increasing judicial attention and support.¹⁵ Such developments encouraged me to look for other possible influences, and my focus here on resources for legal mobilization is the result. The four common-law countries selected for my comparative analysis—the United States, India, Britain, and Canada—have gained reputations as sites of rights revolutions (of varying strengths and focuses, to be sure) but differ in a number of dimensions, particularly in their constitutional structures, the reputations of their judges for creativity and activism, the presence of rights consciousness in popular culture, and the strength of their legal mobilization support structures.

In such a comparative investigation, clarity about what is being compared is essential. Rights, as I use the term here, consist of the new rights that emerged in judicial interpretation of U.S. constitutional law and statutes in this century. Constitutional rights in the past had been primarily the rights of property and contract. The new rights encompass, among ...