From Court Impact to Constraint

In the two decades after Brown, empirical attention focused on the political role of litigation and courts—not direct action. Social scientists, particularly in the field of sociology, were yet to explore social movements as political actors (Marx and Wood Reference Marx and Wood1975). Brown—coming before the civil rights movement's pioneering use of collective action—had an earlier impact on the empirical study of lawyers and courts, galvanizing scholarly attention across disciplines by reframing what lawyers did (litigation) and what courts did (judicial decision making) as inherently political activities (Peltason Reference Peltason1955; Spicer Reference Spicer1964; Cortner Reference Cortner1968).

Political scientists during this first wave pioneered studies examining whether organized litigation activity changed law and whether law, once changed, impacted society. In this new literature, there was initial optimism about the instrumental value of impact litigation—although significant scholarly divisions emerged. On one side, scholars framed litigation as a means of political representation (Vose Reference Vose1959) and contended that investment in organizational capacity by challenger groups caused significant Supreme Court policy shifts by facilitating planning, shaping the court's agenda (Vose Reference Vose1959; Jacob Reference Jacob1969), and imposing decisional pressure (Cortner Reference Cortner1968). On the other side were scholars such as Robert Dahl (Reference Dahl1957), who argued that Supreme Court decisions ultimately reflected the values of the dominant political alliance produced by the prevailing electoral majority, despite some time lag, because the justices were the product of judicial appointment by that alliance. Although Dahl's position recognized a role for lawyers and litigation, it ultimately attributed legal development to broader structural shifts in politics and public attitudes, which invited litigation to validate what the justices were already inclined to do.

First-wave political science also produced an impressive body of court impact studies, which measured the relationship between court decisions and legal implementation (Gould and Barclay Reference Gould and Barclay2012). Although the studies covered a wide range of issue areas and deployed varying methodologies and metrics, their central thrust was to show that court decisions generally, and Supreme Court decisions in particular, failed to translate into robust social change on the ground (Campbell and Ross Reference Campbell and Laurence Ross1968)—thus revealing the “banality of noncompliance” (Dolbeare and Hammond Reference Dolbeare and Hammond1971, 151). Although these studies repeatedly discovered “gaps” between law on the books and law in action, they were genuinely quizzical about the limits of legal enforcement, interested in how to enhance compliance, and not explicitly critical either of lawyers who pursued legal reform or courts that enacted it. Scholars in the law and society tradition were more sanguine, arguing that gaps were a feature of the system, not a bug (Cochrane Reference Cochrane1971; Abel Reference Abel1973), thereby suggesting that courts could be useful allies in social change, pushing society beyond where it would otherwise go—even if that was not to the point of complete correspondence with judicial pronouncements.

As the 1970s brought growing conservatism and changes in judicial personnel, optimism about courts as a fulcrum for progressive change began to erode. Over the next two decades, scholars of judicial decision making began to emphasize political and cultural factors affecting judicial attitudes and outcomes (Ulmer Reference Ulmer1984; Segal Reference Segal1985)—thus deemphasizing the role of impact litigation. Researchers following Dahl investigated how public opinion influenced judicial decision making through two mechanisms. In one, public opinion shaped judicial ideology through the political process: public opinion was expressed through the election of new officials, who would in turn appoint judges who roughly shared their views (Ashmin and Alfini Reference Ashmin and Alfini1974; Rohde and Spaeth Reference Rohde and Spaeth1976). The other mechanism was more direct: judges concerned with court legitimacy were seen to be independently sensitive to shifts in public opinion. Political scientists debated the impact of opinion through these mechanisms and familiar splits emerged (Ball Reference Ball1987).

On one side were scholars who denied that the empirical evidence showed a strong link between opinion and judicial decision making. In this vein, Jonathan Casper argued that the evidence did “not tend to support Dahl's thesis” (Reference Casper1976, 54), instead revealing a Supreme Court quite willing to strike down federal legislation and intervene to protect minority rights in ways that were more aggressive than what would be expected based on mainstream political values. Other studies suggested that court decisions were not consistent with “diffuse or inchoate values widespread among Americans,” but were influenced by “the complex interaction between ideological activists, ideological elites, the nation's institutional and structural arrangements, and the character of dominant political majorities in the United States” (Adamany and Grossman Reference Adamany and Grossman1983, 424, 426).

On the other side, scholars continued to see a positive relation between public opinion and court decision making, and viewed the court as actively responding to dominant social values. Reflecting on his own ruling regime theory, Dahl (Reference Dahl1989, 190) reasserted that “the views of a majority of the justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country.” Barnum (Reference Barnum1985) argued that the court played a role bridging the gap when national and state public opinion diverged—effectively bringing recalcitrant states into line with evolving national norms. By the early 1990s, scholars in this line of research began questioning the idea that the Supreme Court was a countermajoritarian institution at all. In an important empirical intervention, Mishler and Sheehan claimed that data from 1956 through 1989 showed court decisions tracking public opinion after a short time lag, supporting the view of a majoritarian, responsive court (Reference Mishler and Sheehan1993, 96), although they subsequently acknowledged that many judges showed no responsiveness to public opinion and that individual attitudes should be viewed “not as static and immutable, but as relatively fluid and dynamic” (Mishler and Sheehan Reference Mishler and Sheehan1996, 197).

Reacting against the attitudinal model, Epstein and Kobylka sought to refocus attention on the role of legal precedent as an independent factor explaining why judges made the decisions they did. In their analysis, legal change depended not simply on public opinion, judicial ideology, or interest group pressure, but also on the language of law itself: the pull of precedent and legal argument played an independent role in shaping (or preventing) legal change. In Epstein and Kobylka's terms, the choice by social reform groups in the abortion and death penalty contexts of “which arguments to tender and which to ignore” (1992, 307) were significant in a negative sense: shaping the doctrinal terms of debate in ways that undermined their own long-term success. “By continuing to press for legal interpretations that would provide absolute and conclusive victories, both abolitionists and pro-choicers set the stage for their own defeat… . They were blinded to the necessity of strategic backtracking by the tyranny of absolutes, the belief that to win big once is to establish for all time the precedential basis for future legal victories” (308–09). In this view, it was reformers' own undiluted zeal that caused them to cling to positions that hurt the very causes they sought to help.

One could read the political science literature coming out of this stage as reinforcing pessimism about impact litigation and the lawyers who conducted it. The attitudinal model of judicial decision making implicitly devalued the role of lawyers and litigation in producing seminal court victories, since it suggested that (although someone had to file a lawsuit) it was broader shifts in society and politics, rather than legal ingenuity, that caused legal reform. Yet, following Epstein and Kobylka, public interest lawyers could cause social movement harm by clinging to outdated legal positions instead of engaging in strategic capitulation. From this perspective, one could infer that the appropriate role of lawyers was to mobilize law in ways that were directed toward shifting the political culture, which would eventually produce changes in law. The instrumental view of law as a tool of social change was thus challenged.

Beginning in the 1980s, public opinion was also in ascendance in outcome-oriented research as scholars in the court impact tradition began looking at the courts' ability to shape public opinion with their decisions. Predictably, there was empirical disagreement: while some argued that “the Supreme Court probably shapes aggregate distributions of public opinion” (Caldeira Reference Caldeira, Gates and Johnson1991, 312), others cautioned that court opinions affected public attitudes in complex ways depending on how the opinion was treated within the broader political environment. Controversial cases could produce consensus when there was greater homogeneity of opinion, but could split and polarize when “the social environment is heterogeneous” (Franklin and Kosaki Reference Franklin and Kosaki1989, 763–64).

Building on this work, Gerald Rosenberg, in his influential book The Hollow Hope, offered the defining impact study of the civil rights era, investigating “whether, and under what conditions, courts produce significant social reform” (1991, 9). Empirically analyzing the outcomes of a range of court cases, Rosenberg determined that “U.S. courts can almost never be effective producers of significant social reform” (338). It was his analysis of Brown—that it did not lead to desegregation and, in the short term, produced backlash (70–75)—that provoked the strongest reaction. There were two key findings that would prove critical to subsequent legal scholarship.

First, Rosenberg argued that the direct impact of Brown—measured by the percentage of black children enrolled in southern schools with whites—was insignificant; and that it was only after the 1964 Civil Rights Act withdrew federal funding for segregated schools that desegregation occurred in earnest. The implication of this analysis was that although legislation could produce desegregation, a judicial decision could not.

Second, Rosenberg rejected that Brown indirectly affected public opinion or grassroots mobilization in positive ways. Instead, he claimed that the decision caused a decline of public support and produced backlash among whites in the South. Moreover, he concluded, based on a review of media material, that there was no evidence that Brown contributed to the direct mobilization of the civil rights movement, denying a link between Brown and the Montgomery Bus Boycott. Overall, Rosenberg's analysis suggested that not only was Brown ineffective, but (at least in the short term) it hurt the very cause it purported to support. Despite vociferous criticism by sociolegal scholars (Feeley Reference Feeley1992; Lawrence Reference Lawrence1992; Simon Reference Simon1992), Rosenberg's work solidified a picture of courts as doubly dangerous social change allies: weak enforcers of legal rights but strong producers of political countermobilization.

From Impact Litigation to Legal Mobilization

While the political science research on courts—in highlighting their constraints in responding to social change activist demands and producing meaningful reform on the ground—offered implicit judgments of the role of lawyers and litigation in advancing social change, a related strand of sociolegal research building from Stuart Scheingold's attack on the “myth of rights” was more direct. Scheingold argued that not only was impact litigation largely ineffectual in producing social change, but it could also be actively detrimental to the very progressive causes that lawyers and courts sought to benefit. A dissident political scientist writing within the law and society tradition, Scheingold welded together a critique of impact litigation and the lawyers who pursued it, arguing that litigation was, at best, useless, and at worst, harmful: “Without support of the real power holders … litigation is ineffectual and at times counterproductive. With that support, litigation is unnecessary” (1974, 130). Litigation, in Scheingold's view, was only effective in mobilizing a “politics of rights” by promoting indirect effects: “a dual process of activating a quiescent citizenry and organizing groups into effective political units” (131). In this framework, lawyers were most susceptible to the lure of the myth and guilty of carrying it forward. Scheingold (210) thus chastised “activist lawyers,” who “tend to be ill-equipped for and (therefore?) ill-disposed toward mobilization.”

While Scheingold's attack was fundamentally focused on the legal liberal vision of top-down public interest lawyering, Marc Galanter's analysis of “why the haves come out ahead” took aim at the poverty law model of access to justice. Galanter's key move was to acknowledge the importance of individual rights claiming as the conduit by which the legal system received its inputs, but to further disaggregate the “litigation game” (Reference Galanter1974, 98) to show that even if members of underserved groups mobilized law at more equal rates, they would still fail to “come out ahead” (123–25). This was because those litigants tended to be ad hoc users of the legal system—“one shotters” in Galanter's term—who were up against repeat players, like corporations, which could use their superior knowledge of the system and long-term perspective to “play for rules”: settling weak cases and litigating strong ones to judgment in order to “trade off tangible gain in any one case for rule gain” (97, 100–01).

The implications of Galanter's analysis reinforced a critical picture of lawyers and courts in promoting progressive interests. Galanter tapped into the pessimism of the court impact tradition to argue that “change at the level of substantive rules is not likely in itself to be determinative of redistributive outcomes” because rule change “is in itself likely to have little effect because the system is so constructed that changes in the rules can be filtered out unless accompanied by changes at other levels” (149). This militated in favor of looking away from law toward other strategies for reform: “litigating and lobbying have to be complemented by interest organizing, provisions of services and invention of new forms of institutional facilities” (150). In this effort, lawyers were not always to be trusted: “The more that lawyers view themselves exclusively as courtroom advocates, … the less likely they are to serve as agents of redistributive change” (151).

Taken together, the double risks of demobilization and unequal outcomes highlighted by Scheingold and Galanter constituted a stinging indictment of the lawyer-led, court-centered vision of social reform associated with legal liberalism. The idealistic view of law as an instrument of liberation and social justice began to give way to a gloomier notion of law as a tool of domination and injustice (Silbey Reference Silbey2005). This emerging critical perspective channeled law and society scholarship into different streams—both of which moved away from a focus on impact litigation and its direct effects on state power and social behavior, toward the idea of legal mobilization. The shift in analytical focus was from macro-level analyses of why and how disadvantaged groups used impact litigation as a form of political activity directed at the state, and toward mid- and micro-level analyses of why and how organizations and individuals mobilized law to achieve indirect effects—such as resolving disputes, changing attitudes, or motivating action—that were generally outside of courts and formal political channels.

Organizational analysis provided a comprehensive review of public interest law organizations (Handler, Hollingsworth, and Erlanger Reference Handler, Hollingsworth and Erlanger1978) and spotlighted how social-change-oriented legal groups mobilized resources and expertise toward systemic challenges across issue areas, often in the pursuit of indirect effects outside of court, such as changing elite attitudes or raising consciousness (Handler Reference Handler1978, 209–22). This research fed into an emerging discussion about the evolution of progressive lawyering away from the iconic impact strategy of Brown toward multifaceted advocacy that combined organizing, public education, and media strategies in more coordinated legal and political campaigns (Cowan Reference Cowan1977; Neier Reference Neier1982; Aron Reference Aron1989).

The micro-level analysis was evident in emerging studies of disputing, which asked why and how individuals converted grievances into legal claims. In contrast to the rights claiming in court that characterized the public interest law movement, the focus of this research was on the mobilization of private law concepts by individuals in their day-to-day lives (Lempert Reference Lempert1976). The theoretical culmination of this work was William Felstiner, Richard Abel, and Austin Sarat's analysis of the “transformation” of disputes, which drew close attention to the “relationship between the parties”—their “relative status,” “history of prior conflict,” and “strategic interaction” (1980–1981, 640)—as well as the interaction of factors such as party objectives and ideologies, and the position of reference groups and political representatives (642–46), to map how individuals converted “perceived injurious experiences” (633) from grievances into disputes: a process they memorably labeled “naming, blaming, and claiming” (631). Although acknowledging that lawyers could help people in this process by providing information and exploring solutions, lawyers were also viewed as potential threats to the positive resolution of disputes: controlling litigation, discouraging second opinions, and rejecting requests for assistance (645–46). Echoing Scheingold and Galanter, courts were similarly cast in a suspicious light, operating to “individualiz[e] remedies” (648) rather than offer collective justice.

The gathering image of lawyers and the legal system as a source of constraint caused some sociolegal scholars to begin looking at how law could be mobilized by individuals outside of formal legal institutions (Silbey Reference Silbey2005). In this emerging literature on “legal consciousness,” scholars retreated from measuring law as a cause and effect of change, and instead began to attend to “the meanings and interpretive communication of social transactions,” while moving away from “the formal institutions of law” (Silbey Reference Silbey2005, 327). Scholars in this vein began to focus on how law was understood and used in everyday life (Yngvesson Reference Yngvesson1988; Merry Reference Merry1990). The essential frame of analysis was taking stock of how individual understandings of law interacted with other normative systems—the idea of legal pluralism—and how that interaction produced different types of legal and nonlegal action: in some cases directing people away from court to avoid the loss of control, and in others pointing them toward it.

Responding to this shift, Michael McCann (Reference McCann1991, 226) expressed his “fear” that the reaction against the rights claiming spurred by Scheingold's “myth of rights” narrative could “too easily ossify into a cynical ‘myth of non-rights' that is neither justified by historical experience nor helpful for confronting present political challenges.” McCann's response (1991, 227–28) to this dilemma was to propose a concept of “legal mobilization” that reinforced the turn away from “formal state forums.” In McCann's terms (229), “both official and indigenous legal norms and practices generally contribute but limited, partial, and contingent constitutive influences in most domains of citizen activity.” Looking back on the legal consciousness literature, Silbey claimed that the central question it raised was “how to theoretically and methodologically bridge the micro worlds of individuals and macro theories of ideology, hegemony, and the rule of law” (2005, 351).

Social Movements Outside of Law

Social movements, which would become that “bridge,” were developing as a field in their own right during this same time. There were important parallels between the new sociology of social movements and the social science research on litigation and courts. Just as political science had responded to Brown by reframing litigation as an alternative form of representative democracy by excluded minority groups, sociology began to conceive of social movements in the same terms. In contrast to earlier understandings of social movements as outside of politics, events in Montgomery, Birmingham, and Selma, the rise of the student and antiwar movements, and uprisings around the world in 1968, reframed protest as “simply politics by other means” (Gamson Reference Gamson1975, 138–39), in which movements emerged to “represent the interests of groups excluded from the polity” (Jenkins Reference Jenkins1983, 529), by mobilizing “sufficient political strength to bargain successfully with established polity members” (McAdam Reference McAdam1982, 20). As a result, within social science, scholars in the post-civil-rights era developed two parallel frameworks for understanding minority group responses to the failure of majoritarian democracy, each with the same internal debates, thus raising the looming question: For minority groups excluded from interest group politics, what was the better social change tool—litigation or protest?

In the ensuing now-classic sociological exchange over the role of social movements, on one side was resource mobilization theory, drawing on economics to argue that the availability of organizational resources and how they were “aggregated for collective purposes” was the critical determinant of social movements, allowing leaders to overcome the free-rider problem of constituency members by offering tangible and solidaristic benefits (McCarthy and Zald Reference McCarthy and Zald1977, 1216). On the other side, political process theory argued that “social insurgency is shaped by broad social processes that usually operate over a longer period of time” (McAdam Reference McAdam1982, 41). Resources and grievances were important, but political opportunity—splits within extant political coalitions, the emergence of new allies, and the reduction of state-sanctioned repression—was decisive.

At stake in this debate was more than just the question of movement emergence. More deeply, whether movements were driven by access to resources or power linked the question of why movements formed to how they mobilized (means) and what they achieved (ends). With respect to means, debates over resource mobilization versus political process focused attention on the critical role of elite support and professionalization in shaping a movement's tactical repertoire. Access to resources was important to build organization, which was necessary to plan and execute movement actions, but where those resources came from shaped what that action looked like. In a key theoretical move, resource mobilization theory located SMOs within a broader field of political actors, in which funders of movements were potentially distinct from movement beneficiaries. This highlighted a fundamental tension: classic SMOs defined by a mass membership base promoted accountability but lacked dependable resources, yet larger SMOs, over time, were more likely to become professionalized, dependent on elite patronage and paper memberships, and increasingly focused on “problems of organizational maintenance” (McCarthy and Zald Reference McCarthy and Zald1977, 1234). It was precisely this risk of professionalization and de-radicalization that drove political process theory's concern with movement co-optation (Piven and Cloward Reference Piven and Cloward1977; McAdam Reference McAdam1982, 55).

The end of the civil rights protest cycle and the rise of conservatism in the United States reoriented social movement scholarship. On the one hand, the growth of new conservative SMOs—funded by corporate entities to advance corporate-friendly policies, and deploying the tactics of progressive movements of the past—called into question both the notion of a movement as responsive to the grievances of an excluded group and the link between movements and a specific set of noninstitutional tactics. If conservative groups engaged in protest outside of institutional politics, how essential was protest to the core definition of a social movement? On the other hand, the increasingly hostile political environment raised new questions about the pros and cons of resource mobilization. How were professionalization and organizational maintenance to be viewed in the face of political hostility?

As the pendulum swung from progressive protests to a conservative counterreaction, attention focused on the role of opportunities and resources throughout “cycles of protest” (Tarrow Reference Tarrow1983). While the essential trade-off between professionalization and protest persisted, scholars sought to reframe the issue in relation to what was politically viable at a given point in time. In this regard, Suzanne Staggenborg's analysis of the pro-choice movement stressed the potential longer-term benefits of coalition building. While noting that coalitions could play a productive role in mounting challenges by consolidating resources for collective activities (like lobbying) and fostering specialization allowing individual SMOs to “conserve resources for tactics other than those engaged in by coalitions” (Reference Staggenborg1986, 388), she emphasized that coalitions could sustain a movement when environmental conditions turned adverse by promoting collaboration and reducing costs (Staggenborg Reference Staggenborg1991).

Thus, as times changed, organizations adapted and deployed various tactical strategies that, in totality, could move a cause forward in multiple institutional domains (Clemens Reference Clemens1993). In this sense, the theoretical perspectives on opportunities and resources began to evolve toward more complicated pictures of movements that were organizationally complex, tactically diverse, and operating in institutional political arenas as well as on the street. Added to these perspectives were more serious efforts to theorize the complex motivations of participants in movements, drawing attention to the micro-level dimensions of movement participation and the core framing tasks that movements undertook to enlist constituents (Snow and Benford Reference Snow, Benford, Klandermans, Kriesi and Tarrow1988; Morris and Mueller Reference Morris and Mueller1992).

Against the backdrop of these developments, social movement scholars initiated efforts to fuse foundational concepts into synthetic modeling. Tarrow's (Reference Tarrow1994) Power in Movement was an early effort to map out the dynamic interaction among opportunity, resource, and framing variables as they created and sustained contentious politics during protest cycles. The main thrust of this scholarship was to argue that while opportunities mattered for movement emergence, the shape they took and the impact they had were dependent on the complex ways that organizational leadership and networks developed, the power of different framing devices, the role of state actors, elites, and movement opponents, and how media and other conduits of information reacted. A more radical direction was Doug McAdam, Sidney Tarrow, and Charles Tilly's move away from a focus on social movements altogether to study the “dynamics” of “contentious politics” (2001, 4), which included all sorts of political action, including strikes, revolutions, and nationalism, but also insider political strategies. This highlighted an important parallel: Just as sociolegal scholars de-centered lawyers and courts as the essential agents of change, so too did social movements scholars shift the analytical lens away from movements as the core actor accounting for democratic transformation.

Notable within social movement theory at this time was the degree to which law was not generally theorized as a factor influencing movement emergence, a tool of mobilization, or a result of movement activism. For movement scholars into the 1990s, litigation specifically and law in general were mentioned only in passing, part of the political context within which movement actors calculated strategy—but not a central part of that strategy itself. This was in part a definitional choice, with scholars seeking to distinguish movements from interest groups and thus to distinguish movement strategy from “institutional” politics, like lobbying, legislative advocacy, and, presumably (though not explicitly), litigation. There were implicit references and sporadic efforts to identify law's role in movements. In McAdam's (Reference McAdam1982) process model, law emerged at different points in the story: legal change affected the political shifts that set the stage for movement emergence, while contributing directly (as in the case of Brown) to the political vulnerability of segregation. Steven Barkan (Reference Barkan1984), in contrast, viewed law as a constraint on the civil rights movement, arguing that legal repression was more successful than violence in limiting movement advances.

As protest ebbed, however, social movement scholars became more attuned to the potentially productive role law could play in mobilization. Connecting to studies of framing and hegemony, Alan Hunt argued that rights could be productive tools of social change to the extent that they involved “mobilization of forms of collective identities” (Reference Hunt1990, 325). More pragmatically, Paul Burstein argued that increased litigation around equal employment opportunity, and the positive correlation between collective actions and successful outcomes, showed that “successful movements generally utilize proper channels as well as outsider tactics” (Reference Burstein1991, 1203). Criticizing those who argued that only dissent produced productive outcomes, Burstein saw value in “the possibility that part of the movement was able to innovate by turning to legal channels and developing new approaches to legal doctrine” (1222). Social movement scholars during this period generally neglected law as an outcome or consequence of social movement mobilization (McAdam, McCarthy, and Zald Reference McAdam, McCarthy, Zald and Smelser1988), despite the fact that scholarly assessments of movement success often hinged on policy wins (Gamson Reference Gamson1975), with many accounts featuring “social movements that included, as a central aspect of their program, the creation of new laws or the reform of existing ones” (Rubin Reference Rubin2001, 11).

Law and Social Movements

In the early 1990s, sociolegal scholars of legal mobilization were searching for a way to bring structural analysis and state-oriented challenges back into focus after the “cultural turn” directed attention to individual empowerment and legal consciousness (Silbey Reference Silbey2005); and, reacting against Rosenberg and the court impact tradition, there was a desire to defend litigation and adjudication against charges of counterproductivity. For social movement scholars, the closing space for organized dissent within political conservativism and the need to link theory to the developing reality of professionalized SMOs engaged in multifaceted tactics pushed scholars to reevaluate the role of law in social movement struggles and outcomes. In this context, legal scholars were drawn to social movements, and social movement scholars were drawn to law.

When the field-defining work came, it would operate against the backdrop of these foundational debates—and take sides within them. In Rights at Work, McCann set out to reorient the study of law against the critical vision that had taken shape in the post–civil rights era. To do so, he fused together the core theoretical concepts that had developed up to that point: legal mobilization and indirect effects. In his “process-oriented” approach, he emphasized the “constitutive” concept of law and poststructural notions of power. Rejecting the instrumental view of law that characterized impact studies, McCann argued that the role of law in movements was multifaceted: “raising citizen expectations regarding political change,” leveraging “formal changes in official policy,” and shaping “subsequent movement development, articulation of new rights claims, alliance with other groups, policy reform advances, and social struggle generally” (1994, 11). Taking the point of view of the lawyers, rather than the court, and focusing on how the lawyers mobilized law at the lower-court level, McCann concluded that legal mobilization had important positive effects in the pay equity movement, particularly in the early phases of movement building and policy reform. Although McCann concluded that reform litigation was of limited effectiveness in promoting legal implementation (180), he was more optimistic about its indirect effects, emphasizing how law was used by activists to achieve policy concessions, build movement infrastructure, and transform the legal consciousness of the actors involved (280–84). Instead of law coming in from the top down to damage movements, it was seen as integrally linked to day-to-day struggle, advancing from the bottom up.

McCann's focus on the relation between law and union organizing set the frame for his analysis. He was not studying impact strategies to claim new rights in court; nor was he studying movements of weak or diffuse constituencies. To the contrary, his focus was on the ways that unions deployed law in sophisticated political strategies characterized by the “tactical use of legal leveraging in concert with other bargaining and lobbying strategies” (McCann Reference McCann1994, 144). Thus, his emphasis was on the role of law and lawyering in the context of a strong “client”—organized labor, where litigation was “an ancillary or supplementary tactic to increase worker leverage in bargaining processes” (144). Accordingly, courts were less central to overall strategy, and diminished in importance over the lifespan of the movement, particularly “after 1985, when the courts began closing the door of access to gender-based comparable worth claims” (84). In this context, lawyers deployed multiple tactics: “active in generating movement publicity, rallying support from union members, coalition building, and political strategizing” (130). Simply put, they were not pursuing the myth of rights, but rather took direction from strong union leaders and thus were “bound both by the influence of competing leadership groups and by the goals of the large organizations to which they belong” (131).

The immediate impact of McCann's intervention was to frame the new law and social movements field precisely around a constitutive view of law, in which lawyers and courts were de-centered—a view that affected the methodological focus and the kinds of campaigns that those who followed would study. In the near term, McCann's work opened up a new line of scholarly inquiry that rejected myth of rights and hollow hope narratives: it was more optimistic. But it also pointed scholars of law and social movements in a particular direction: toward bottom-up analyses in which law was valued as a political resource but not as a tool that was instrumentally valuable in changing social behavior (McCann Reference McCann2006). Litigation was useful as “a source of institutional and symbolic leverage against opponents,” used to “dramatize abuses” and “win favorable media attention” (29–31).

The work that followed thus presented a sharply different picture than the one that emerged in the post–civil rights era, emphasizing a particular mode of legal engagement: lawyering in connection with mobilized groups that underscored the political limits of courts. In the emerging law and social movements literature, lawyers were presented as political actors, standing alongside other activists, and courts were presented as relevant for leveraging indirect effects. In Silverstein's (Reference Silverstein1996, 4) study of animal rights, she adopted a “decentered approach … exploring the continuous and dynamic interaction between the judicial and the nonjudicial.” In Polletta's account of grassroots activists at the Student Nonviolent Coordinating Committee (SNCC), CORE, and the Council for Federated Organizations during the civil rights movement, law fostered political activism by serving as “prods to further action” (2000, 369): “rights claimsmaking was effective in mobilizing people for non-litigational activities such as registering to vote, participating in economic boycotts, demonstrating against segregated facilities, and forming parallel political parties” (Reference Polletta2000, 401). While law and politics were coconstitutive, the role that law played in shaping politics was largely strategic and tactical.

This emphasis on legal mobilization and indirect effects ran through the flowering of law and social movement scholarship that followed (see Barclay, Jones, and Marshall Reference Barclay, Jones and Marshall2011). Scholars stressed the function of law in building movements and framing their claims (Hilson Reference Hilson2002; Pedriana Reference Pedriana2006; Paris Reference Paris2009), promoting “pragmatic resistance” in which activists treated law as “purely tactical” (Chua Reference Chua2012, 713). Others explored how “the politics of rights” (Scheingold Reference Scheingold1974) shaped the lawyering approach to the marriage equality movement, examining how law served as part of the opportunity structure that channeled movement activism and framed core movement demands in different subject areas (Dupuis Reference Dupuis2002; Goldberg-Hiller Reference Goldberg‐Hiller2002), while also exploring how litigation strategies were sometimes shaped in anticipation of countermobilization (Dorf and Tarrow Reference Dorf and Tarrow2014). Scholars deepened analysis of the pros and cons of litigation as a social change tactic (Albiston Reference Albiston2011): investigating how it could channel movement resources into more conservative social movement goals in the United States (Morag-Levine Reference Morag‐Levine2003; Levitsky Reference Levitsky, Sarat and Scheingold2006; Leachman Reference Leachman2014), but also how it could result in pro-poor decisions by courts on social and economic rights outside of US jurisdictions (Brinks and Gauri Reference Brinks and Gauri2012). Bottom-up analyses revealed how mobilization outside of legal institutions created new legal meanings at work (Albiston Reference Albiston2011) and in court (Lovell, McCann, and Taylor Reference Lovell, McCann and Taylor2016), while reframing the role of human rights in domestic struggles (Merry et al. Reference Merry, Levitt, Rosen and Yoon2010).

Though this scholarship reclaimed law as a productive force in social movements, it did so on grounds that reinforced a circumscribed role for lawyers and courts, in which each was relevant to constructing movement identities, leveraging policy wins, and changing constituent consciousness. And even though McCann himself was clearly focused on the complex interactions between law and politics, and was careful in his analysis not to assign blame for less-than-optimal results to features of the legal system, the mobilization approach he pioneered resonated most powerfully with scholars committed to a particular vision of bottom-up social change. Indeed, McCann's own vision of social movements emphasized their advancement of “more radical aspirational visions of a different, better society,” their reliance on “communicative strategies of information disclosure and media campaigns as well as disruptive symbolic tactics such as protests, strikes and the like,” and their responsiveness to “core constituencies of nonelites whose social position reflects relatively low degrees of wealth, prestige, or political clout” (2006, 24). This vision of movements—and the attendant roles for lawyers and courts that it carried with it—would prove foundational for the social movement turn in legal scholarship.

Majoritarian Courts

Within constitutional law, movement liberalism responds to the fundamental countermajoritarian problem by advancing a vision of judicial review that supports majoritarianism rather than contradicts it. In so doing, the model has sought to reassert the court as a vehicle for progressive reform while simultaneously rescuing it from the charge of judicial activism—reestablishing the law-politics boundary disrupted by legal liberalism and its critics, while acknowledging its permeability. This section presents the model of majoritarian courts that emerges from contemporary legal scholarship, shows how it trades on social science empiricism, and links it to the movement liberal framework.

The critique of legal liberalism focused progressive scholars on the search for legal meaning: Which interpretive communities mattered for establishing the content of constitutional law (Minow Reference Minow1987)? At the close of the millennium, the politics of “looking to the bottom” to recover the authority of “we the people” to engage in direct self-government and higher lawmaking helped reconcile judicial review with democratic politics through a program of judicial minimalism (Sunstein Reference Sunstein1999; Tushnet Reference Tushnet1999), but this move only served to refocus the question on which groups could mobilize through politics to reshape constitutional law in progressive directions. The countermajoritarian difficulty was not so deftly avoided since the issue of minority protection through law still lingered.

Movement liberalism attempts to bridge the space between bottom-up theories of constitutional interpretation and the politics of progressive social change. To begin, the Supreme Court is stripped of its primacy as “the only institution empowered to speak with authority when it comes to the meaning of the Constitution” (Kramer Reference Kramer2001, 166). Instead, the idea of “popular constitutionalism” rejects judicial supremacy. As Larry Kramer (Reference Kramer2001, 166) put it, “less is more when it comes to limiting self-government, and we should be thinking about a minimal model of judicial review that calls upon judges to intercede only when necessary.” This move is a political reaction by progressives against a conservative Supreme Court—a theory of minimalism designed to create space for progressive democratic experimentation—but it is more than just that. The notion of popular constitutionalism is also a historically grounded jurisprudential theory that seeks to rescue progressive judicial lawmaking from the charge of elite social engineering by locating legal change where it legitimately should be: in politics (Balkin Reference Balkin1995; Kramer Reference Kramer2004).

By de-centering the court, however, popular constitutionalism raises basic questions of mechanics: How exactly do the people influence judicial decision making? Here is where constitutional law has turned to social science for empirical help: drawing on political science to erect a model of judicial majoritarianism and on sociology to make it progressive. Popular constitutionalism has first drawn from political science research on public opinion and judicial decision making to link judicial review to popular politics (Friedman Reference Friedman2003, 2598). Barry Friedman opened the door to importing social science, arguing that though it had a great deal to teach, it was “a body of work that has received little notice by the legal academy” (2599).

Tapping the pro-public opinion vein of the political science literature, Friedman has made the strongest case for “mediated” popular constitutionalism, arguing that there are two mechanisms that account for the “congruence of popular preferences and judicial outcomes” (2003, 2608). One, following political scientist Robert Dahl (Reference Dahl1957), is the appointment process, in which presidents “appoint people whose views are congenial, and who can survive the confirmation process” (Friedman Reference Friedman2003, 2609; Balkin and Levinson Reference Balkin and Levinson2001). Through what Jack Balkin calls “partisan entrenchment” (Balkin Reference Balkin2005, 30), the ideology of the judiciary remains closely aligned with that of the ruling political coalition, though often after a time lag. The other mechanism is more direct: because judges need popular support both to maintain judicial legitimacy and to promote enforcement of judicial decrees, they have incentives to “ensure their decisions do not stray too far outside the mainstream” (Friedman Reference Friedman2003, 2612).

What this means in particular contexts is complicated since generalized support for the court can make it withstand some deviations from the political midpoint, particularly on issues of low public salience; however, when the court weighs in on issues of social import, Friedman suggests that its decisions are less likely to educate the public than to polarize preexisting views, potentially contributing to backlash (2003, 2624–25). In this way, judicial supremacy and popular constitutionalism are “dialectically interconnected”: the court makes authoritative legal pronouncements only after the public has generally subscribed to the position as a form of judicial validation (Post and Siegel Reference Post and Siegel2004, 1029). “Public opinion serves as an important check” on the court, which “has some freedom to go its own way” but “if it strays too far away from these constraining forces, it inevitably is brought back into place” (Friedman Reference Friedman2004, 1279–80). On this view, public opinion is not simply correlated with judicial decisions, but given causal power. In Friedman's (Reference Friedman2004, 1295) terms: “The Supreme Court does not buck public opinion for long, but ultimately comes into step with it, at least on most matters.” As Balkin puts it, the court is “less anti-majoritarian than nationalist” (Balkin Reference Balkin, Hayman and Ware2009, 246). From this perspective, Brown may be interpreted as a pro-majority opinion since “popular sentiment favored what the Court was doing and national interests were furthered by it” (Friedman Reference Friedman2004, 1281).

Yet rooting judicial decision making in majoritarian politics raises the critical question that legal liberalism sought to address: How do nonelite groups that are disfavored by public opinion play a role in a model of court decision making that depends on majority public opinion? This is the crucial point at which constitutional law has turned to sociology to write social movements into the movement liberal model. Scholars took steps to initiate this incorporation in the early 2000s, with Cary Coglianese using the institutionalization of the environmental movement to show how “social movements, law, and society interact with one another in a more bidirectional fashion than is generally recognized” (Reference Coglianese2001, 86). That same year, Edward Rubin offered a systemic review of the underlying social science to argue that legal scholars had failed to appreciate the role of social movements in mobilizing for legal change, opting instead to study only what happened inside of lawmaking forums and the impact of legal change on society. In Rubin's terms, legal scholars had failed to “pass through the door” of the courthouse to understand the “empirical world of mobilization, recruitment, political strategy, and organizational behavior” (2001, 51).

Progressive constitutional theorists who accepted this invitation to “pass through the door” have used social movements to fill out the picture of bottom-up constitutional lawmaking. The essential move has been to identify social movements as a bridge between the people, popular opinion, and legal change: crucially, it is the social movement, not simply an inchoate public (nor an established interest group), that reshapes politics and opinion to produce court change. In Balkin's model of partisan entrenchment, social movements “have helped determine who becomes a judge or Justice and hence whose views of the Constitution become part of positive law” (Balkin Reference Balkin2005, 28). Movements also matter in directly shifting public opinion: “reshap[ing] constitutional common sense, moving the boundaries of what is plausible and implausible in the world of constitutional interpretation” (Balkin Reference Balkin2005, 28). In this way, social movements influence law by “altering public opinion, and particularly elite public opinion,” which is what matters most to judges seeking to preserve legitimacy (Balkin Reference Balkin2005, 30; see also Balkin and Siegel Reference Balkin and Siegel2006, 949). This model both forms a positive theory of adjudication and serves to explain iconic progressive decisions of the past. For instance, in Klarman's view, “neither Brown nor Lawrence created a new movement for social reform; both decisions supported movements that had already acquired significant momentum by the time their grievances had reached the Supreme Court” (Reference Klarman2005, 445).

This model of majoritarian courts linked to social movements reframes the law-politics problem in ways that respond to concerns about judicial legitimacy and the effectiveness of court decisions to produce reform. Legitimacy is preserved while progressivism is advanced by imagining courts as responding to movement pressure. Accountability to the democratic process and underrepresented interests is maintained by positioning social movements as the essential agents of pluralistic change and understanding judicial decision making as deferring to the new consensus created by movement activism. The crucial point is that law is not made by courts but by the social movements themselves. Once social movements have shifted culture and transformed politics, Supreme Court decisions validate the new consensus that movements produce. Law therefore remains neutral vis-à-vis politics, while remaining ready to affirm progressive causes on the basis of objective changes in public opinion. Moreover, making social movements the authors of constitutional change enhances democratic legitimacy and reinforces the separation between law and politics as movements speak in the language of constitutional rights on their own terms, rather than relying on activist courts (or lawyers) to do so for them (Siegel Reference Siegel2006, 1345).

With respect to judicial efficacy, the empirical point drawn from political science is that court decisions lag behind culture—reflecting popular and, especially, elite attitudes—rather than leading it (Friedman Reference Friedman2009); and to the extent they do not wait for the appropriate moment, judicial decisions risk backlash (see Klarman Reference Klarman1994; Greenhouse and Siegel Reference Greenhouse and Siegel2011; Fontana and Braman Reference Fontana and Braman2012; Schraub Reference Schraub2013). This empirical foundation strengthens the movement liberal claim to promote more stable and enduring reform. By changing social attitudes before law changes, social movements ensure legal compliance: their work is culture shifting rather than just rule shifting.Footnote ⁹ By synching public attitudes with their position, social movements avoid the downside risk of political backlash.

Elegant as it is, this basic picture nonetheless obscures further mechanical difficulties and progressive problems. Most significantly, what do movements have to do to forge new majorities that shift law in their favor? Because this model is organized around adjudication, it raises the same concern that critical scholars raised about legal liberalism: that the project of political mobilization must be framed in ways that garner mass and elite support; doing so channels politics into the accepted normative frameworks of liberalism, especially its commitment to individual rights; and this discourse ultimately proves susceptible only to moderate political demands. This position creates a dilemma for progressives because it welds social movement politics to some version of elite politics: it says, in effect, that social movements succeed in changing norms by persuading bystanders and elites to adopt their views. In this sense, it asserts an interest convergence thesis (Bell Reference Bell1980) to the extent that is suggests social movement claims will be successful when connected to majority interests.

The progressive response to this dilemma has varied. Some scholars concede that social movement mobilization ultimately reinforces conventional pluralism—thus converting it to a positive story of minority assimilation into mainstream politics. In this vein, William Eskridge (Reference Eskridge2002, 2388) envisions the interaction between “identity-based” social movements and constitutional courts as a conduit by which movements are integrated into the political mainstream, facilitating an essential “politics of recognition” that succeeds in removing the most overt barriers to political participation and thus assimilating movements into “normal politics.” Once this happens, identity-based movements confront countermovements opposed to the establishment of affirmative rights of remediation and the court is generally obliged to withdraw from the fight in order to “keep group conflict within the bounds of a moderating pluralism” (Eskridge Reference Eskridge2002, 2388). The role of the court is therefore to accommodate social movement challenges to broaden political pluralism. In this sense, Eskridge (Reference Eskridge2002, 2405) cautions that “popular constitutionalism may be a good idea but it is hardly a progressive panacea.”

Although Reva Siegel (Reference Siegel2006) locates assimilative forces within politics rather than courts, she similarly understands the contest over constitutional meaning to enable movements to build alliances in ways that break down barriers to political participation. In her view, it is the power of countermobilization in politics (and not simply the pull of judicial elites) that causes social movements to reframe their claims in terms that can attract widespread mainstream support. Her account of the de facto equal rights amendment (ERA) illustrates this point. In it, pro-equal-rights movement leaders (acting in opposition to movement lawyers' views) accepted a narrower definition of sex discrimination (that excludes sexuality and reproduction) as a way of accommodating the arguments of opponents who sought to link the ERA with legalization of abortion and same-sex marriage. In contrast, Gerald Torres resists the notion that social movements have to make political compromises that undercut their progressive goals, arguing instead that movements can succeed in shifting cultural norms in progressive directions so long as “non-elite actors have … a voice earlier in the agenda setting process” thus ensuring the adequacy of their “representation” (Reference Torres2007, 142).

Movement Lawyering

The issue of representation connects the idea of majoritarian courts with the concept of movement lawyering. By asserting a productive link between movement activism and legal reform, movement liberalism reimagines the role of law in progressive social change and has thus spotlighted—and invited deeper reflection on—how social movements relate to lawyers (Bachman Reference Bachman2001; Hilbink Reference Hilbink2004; Gordon Reference Gordon2005b, Reference Gordon2007; Meili Reference Meili, Sarat and Scheingold2006; Alfieri Reference Alfieri2007; Ashar Reference Ashar2007; Ziegler Reference Ziegler2010), who mediate between movement claims and state power, but in so doing pose familiar risks to movement legitimacy and success (Sarat and Scheingold Reference Sarat and Scheingold2006).

In the lawyering literature, the new movement liberal research has focused on demonstrating how most lawyers, most of the time, are not like those in the iconic stories of legal liberalism in which (so the story goes) lawyers turned to courts to win national policy change for underrepresented groups by expanding rights. To the contrary, lawyers in the contemporary literature are movement centered: they take their cues from the community (Diamond Reference Diamond2000; Alfieri Reference Alfieri2007), work closely with organizers (Cummings and Eagly Reference Cummings and Ingrid V2001), follow the lead of SMOs, and deploy law strategically, and often incrementally, to advance discrete movement goals (Erksine and Marblestone Reference Erskine, Marblestone, Sarat and Scheingold2006). The engage in legal mobilization not impact litigation. Their work expands far beyond courts (though it does not reject litigation as movement leverage), encompassing policy advocacy, organizational counseling, community education, and protest support. The lawyers are politically sophisticated, tracking polling data about public attitudes, developing communication strategies to influence media spin, and strategizing about how to deal with potential movement backlash (Cummings and NeJaime Reference Cummings and NeJaime2010). Overall, this literature emphasizes the descriptive point that lawyers are decisively not pursuing the legal liberal “myth of rights”—to the contrary, they are putting movements first. The implicit prescriptive claim is that lawyers should treat movements in client-centered terms, counseling them to advance movement-defined ends in order to help them build power and achieve their goals.

Like its constitutional law counterpart, the new movement literature on lawyering selectively incorporates social science to respond to the professionalism problem in legal liberalism, in which activist lawyers were seen to violate norms of professional neutrality in pursuing their own political projects disconnected from client interests and input. This new movement literature draws on the critical visions developed in response to legal liberalism, but seeks to reconstruct a version of lawyering that avoids their central thrust. Methodologically, the movement lawyering literature has relied on the concepts of legal mobilization and indirect effects (McCann Reference McCann2006): linking together a bottom-up perspective on legal mobilization developed in the disputing and legal consciousness scholarship (Silbey Reference Silbey2005) with social movement studies in sociology (McCarthy and Zald Reference McCarthy and Zald1977; McAdam Reference McAdam1982, Benford and Snow Reference Benford and Snow2000). In this sense, instead of law coming in from the top down to damage movements, it is reclaimed as integrally linked to day-to-day struggle from the bottom up (Meranto Reference Meranto, Costain and McFarland1998).

Beginning in the 2000s, legal scholars focused on lawyering turned to the legal mobilization framework as a way to avoid the critique of lawyer accountability and to relink legal representation to structural change. As the mobilization framework spread from social science to law (Edelman, McAdam, and Leachman Reference Edelman, McAdam and Leachman2010), Austin Sarat and Stuart Scheingold's cause lawyering project on social movements was a critical bridge. In it, they asserted the conceptual difference of framing lawyering around movements, which “tend to be more concrete and embodied in the people who work in and for them, the organizations that represent them, and in the actions taken to advance the movement's goals” (2006, 2). This was important because it reduced the potential for lawyer manipulation by positing clients with the resources and the decision-making capacity to pursue their own ends. There was also a critical methodological dimension to this reframing, since analysis could start with movements and examine what cause lawyers “do for and to them” (Sarat and Scheingold Reference Sarat and Scheingold2006, 2). This focus also reinforced the move to reframe what lawyers did around the concept of legal mobilization: rather than lawyers bringing suits disconnected from movement aims, the framework emphasized rights as a political resource. In this analysis, lawyers could be good professionals, deferring to the movement, or could “push movements to legalize their agenda with a resultant narrowing of focus and loss of momentum. Similarly, cause lawyers may, wittingly or unwittingly, parlay their expertise and their social capital to redirect the trajectory of the movement. In so doing, they may undermine the leadership and stifle the grassroots energies necessary for success of the movement” (Sarat and Scheingold Reference Sarat and Scheingold2006, 12).

Drawing on this foundation, the new movement lawyering literature responds to the legal liberal critiques of lawyer accountability and litigation efficacy by emphasizing the themes of client-centered lawyering and multidimensional advocacy (McCann and Silverstein Reference McCann, Helena, Sarat and Scheingold1998). The movement lawyering model appears in connection with a range of substantive areas: housing (Hartigan Reference Hartigan2010; Rankin Reference Rankin2015), elder law (Kohn Reference Kohn2010), LGBT rights (NeJaime Reference NeJaime2003, Reference NeJaime2011; Spade Reference Spade2009), women's rights (Merry et al. Reference Merry, Levitt, Rosen and Yoon2010), policing (Karakatsanis Reference Karakatsanis2015), labor (Cummings Reference Cummings2007, Reference Cummings2009, Reference Cummings2011, Reference Cummings2015), immigrant rights (Gordon Reference Gordon2005b; Eagly Reference Eagly2012), and disability (Waterstone, Stein, and Wilkins Reference Waterstone, Stein and Wilkins2012; Waterstone Reference Waterstone2014), among others. The literature adopts the perspective of the lawyers, showing how they understand their work and relate to clients. This shift in perspective spotlights the legal consciousness of the lawyers as a way of showing how they simultaneously attempt to promote client accountability and political transformation (Rose Reference Rose2000; see also Kostiner Reference Kostiner2003; Shdaimah Reference Shdaimah2009). In this way, the new literature seeks to underscore the professional legitimacy of movement lawyering, showing how it advances client centeredness, while simultaneously evincing commitment to a progressive cause. As such, it responds to the professionalism problem by attempting to smooth out the tensions between conventional and cause lawyering.

Within this perspective, the movement lawyers' relationship with clients is key. Lawyers are portrayed as eager to collaborate and promote client ends (see, e.g., Rhode Reference Rhode2008). Stories of movement lawyering reveal lawyers representing already-mobilized clients, not the vulnerable or disorganized clients emphasized in the legal liberal model (Gordon Reference Gordon2007, 2141). Lawyers work with “partners with organizing capacity” who are “sophisticated in mounting and directing campaigns and have a history of organizing” (Elsesser Reference Elsesser2013, 386). In Sameer Ashar's (Reference Ashar2007) account of lawyering for “resistance movements,” he describes the representation of low-income immigrant workers connected with a broader campaign to organize back-of-the-house employees in a chain restaurant, directed by the labor group Restaurant Opportunities Center in New York (ROC-NY). Although the legal representation was complicated by the “tripartite relationship between lawyers, workers, and organizers” (1898), the lawyers were “careful not to influence workers against their prior political commitments to ROC-NY” (1910). In this way, the “organizers and workers held lawyers accountable” (Ashar Reference Ashar2007, 1918). Similarly, in Jennifer Gordon's (Reference Gordon2005a, 9) historical analysis of lawyering for the United Farmworkers union (UFW), she notes that the union avoided “lawyer domination” by virtue of its “breadth and strength at the time that it brought lawyers onto its staff, its leaders' recognition of the power of law and the mutual respect among lawyers and organizers.”

Other scholars similarly emphasize the interaction between mobilized clients and client-centered lawyers (Eagly Reference Eagly2012; Sharpless Reference Sharpless2012; Quigley Reference Quigley2012). In a careful account of transgender political mobilization (Arkles, Gehi, and Redfield Reference Arkles, Gehi and Redfield2010, 583, 620), lawyers “take leadership from, and support the goals of, community-organizing projects,” in which lawyers play “important roles—but not the most important roles.” In Sarah London's (Reference London2011, 73) study of reproductive justice, she similarly argues that “those most oppressed should be at the center of the struggle—directing the goals of the movement and building power to achieve them.” Other scholars have provided new accounts of lawyering for coalitions aligned with social movements.Footnote ¹⁰ In Hina Shah's (Reference Shah2015, 416) reflection on her clinical work, she describes lawyers representing the California Domestic Worker Coalition to pursue a legislative “bill of rights,” in which the client coalition had “clearly articulated goals and transparent decision-making.” Michael Grinthal (Reference Grinthal2011, 50) describes movement lawyers as “political enablers,” illustrating the work of lawyers for the SNCC and the UFW as “facilitating or opening spaces for organizing and the exercise of relational power,” thereby enabling “the group to make its own demands.” Where movements are not already mobilized, lawyers in this literature help spark them by partnering with “community-based organizations and … utiliz[ing] the law to assist with community-building as a step toward fortifying sustainable movements” (Newman Reference Newman2011, 619).

As these accounts highlight, deference to client decision making and support for client empowerment are critical themes in the movement lawyering vision. As Melanie Garcia (Reference Garcia2011, 565) puts it, “movement advocacy empowers the client to begin more immediately working toward social change with the other members of her community or with members of the relevant social movement.” Although lawyers “are often fueled by an intense passion for the cause they represent,” that need not be the case in a social movement context where “traditional lawyers can instead achieve a similar level of dedication to the client's goals by a true commitment to … zealous advocacy and by deferring to the client” (Garcia Reference Garcia2011, 566; see also Sabbeth Reference Sabbeth2015). Movement lawyers are urged to “strive to achieve an ego-less practice” (Freeman Reference Freeman2015, 202), and to focus on addressing power at the intersection of multiple identities (see Escudero Reference Escudero2013, 36-37). In this way, movement lawyering responds to the lawyer domination that has too often “led to unstable change” (Torres Reference Torres2009, 581).

As this suggests, the client-centered style of movement lawyering links together accountable advocacy and a multifaceted strategic approach to legal mobilization coordinated with politics to produce more effective and enduring social change. Although lawyers are deferential to client ends, they are highly valued for their legal skill (Foster and Glick Reference Foster and Glick2007; Gordon Reference Gordon2007).Footnote ¹¹ Litigation is one tactic among many that lawyers use, typically desirable for its indirect effects in gaining political leverage, framing an issue, or influencing public opinion (Sabel and Simon Reference Sabel and Simon2004; Brescia Reference Brescia2010; Chen Reference Chen2013). In this way, litigation is presented as valuable to “achieve organizing aims in ways that [are] essentially indifferent to the outcome in court” (Gordon Reference Gordon2007, 2139; see also Coleman, Nee, and Rubinowitz Reference Coleman, Nee and Rubinowitz2005). This includes mobilizing “sometimes hostile state power, both through adjudication and agency enforcement against” movement targets (Ashar Reference Ashar2007, 1908). Litigation is thus reframed as providing a potential boost to movements. This may happen even when the immediate judicial result is negative as movement actors mobilize in the face of a loss to raise funds and strengthen solidarity (Albiston Reference Albiston2011; NeJaime Reference NeJaime2011; Depoorter Reference Depoorter2013). Contrary to the legal liberal model of high-profile, policy changing impact litigation, movement lawyers in the new literature sometimes use litigation as a form of “stealth advocacy,” which does not seek to “make law” but to “alter social facts on the ground, and then play defense to preserve that alteration” (Schlanger Reference Schlanger2015, 900). As this underscores, movement lawyers coordinate litigation strategically with political mobilization—to positive effect. In one illustration from the marriage equality movement (Fore Reference Fore2015, 192–99), low-profile litigation is used to establish parental rights first, laying the ground for the pursuit of marriage through “multidimensional advocacy.”

In the movement lawyering model, rights are seen as tools not traps. They can shine the spotlight on systems of lawlessness to mobilize attention and political pressure (Ahmad Reference Ahmad2009; Gordon Reference Gordon2010; Fletcher Reference Fletcher2012). They can also be claimed by lawyers in ways that catalyze movements (Moliterno Reference Moliterno2009), for example, by creating a new discourse for resistance to language discrimination (Chen Reference Chen2013), or reframing the status of the family (Maxwell Reference Maxwell2012; Scott and Scott Reference Scott and Scott2015). In her work on Supreme Court decision making, Lani Guinier (Reference Guinier2009) frames litigation as a space to give voice to the marginalized, even when those voices are only heard in dissent. While much of this literature has focused on contemporary movements, some scholars have reflected backward to recover new models for combining litigation and movement organizing, with groups like SNCC and Saul Alinsky's Industrial Areas Foundation displacing the NAACP as new paragons of smart advocacy (Egerman Reference Egerman2012; Brown-Nagin Reference Brown‐Nagin2013). Along these lines, Jennifer Gordon's analysis of the UFW, introduced above, showed how law could play “an important supporting role in the rebirth of a movement” (2005a, 9), offering lessons to contemporary labor leaders. Similarly, new research on lawyering prior to the civil rights period has focused attention on how the act of representation in court “challenged traditional racial identity configurations,” resulting in “local experimentation and small-scale transformation” that fed into larger movements (Carle Reference Carle2014, 528, 541; see also Mack Reference Mack2012).

As movement lawyering reclaims litigation, it also reframes the range of advocacy skills that may be effectively deployed. Throughout the literature, lawyers use “legal and non-legal intervention” to promote movement goals (Alfieri Reference Alfieri2007, 1840). Lawyers engage in “collaborations with agencies” (Ashar Reference Ashar2007, 1922), and make alliances with other power holders to advance client causes (NeJaime Reference NeJaime2012a). They use tactics outside of litigation, in an “integrated” fashion (Zalman Reference Zalman2011; see also Mananzala et al. Reference Mananzala, Munshi, Qurashi, Redfield and Spade2010), which creates strategic virtuous spirals (Karin and Runge Reference Karin and Runge2011; Nolette Reference Nolette2015). Law is also asserted as a symbolic resource for framing disputes, providing movements with discursive advantages in setting the agenda and defining the issue (Kapczynski Reference Kapczynski2008; Davis Reference Davis2011). In this way, movement lawyering seeks to draw attention and resources to new issues or to cast old ones in a different light (Luna and Luker Reference Luna and Luker2013; NeJaime Reference NeJaime2013). Overall, legal mobilization—in combination with other movement strategies—is reclaimed as a positive force, supporting movements in advancing multiple forms of resistance (Ashar Reference Ashar2007).Footnote ¹²

Process

In the legal process framework, the key concern is protecting law's legitimacy through a clear demarcation of law from politics. As discussed earlier, classical legal process theory in the wake of Brown extended the institutional specialization of realism to argue for an approach to adjudication that depended on the articulation of neutral principles as a basis for rights extension by courts. The rationale was to limit judicial discretion in a framework of institutional competence within which social reform would occur through politics, while law would change only on the basis of social consensus. The parallel move within the legal profession literature was to imagine the adversary system as a procedural site of neutral dispute resolution and lawyers as neutral facilitators of that process, which would in the aggregate produce rough justice (Pepper Reference Pepper1986). Just as constitutional law was concerned with courts' decisional autonomy from judges' politics, the professional scholarship expressed concern with clients' decisional autonomy from lawyers' politics. Probing more deeply into the movement liberal literature reveals the emergence of a similar process framework—only now supported by empirical claims about the social costs of movement efforts to use law to change politics, framed in terms of law reform that deviates from public opinion. There are three elements to this process approach.

First, the process framework operates through a set of presumptions that differentiate law from politics. This is evident in the way that the process approach understands how courts (especially the Supreme Court) make decisions and how those decisions affect social behavior (Klarman Reference Klarman2013a). Thus, within the process framework, social change occurs first outside of legal change (Klarman Reference Klarman2009, 290); court decisions are then issued as a reflection of social change, working to “constitutionalize consensus and suppress outliers” (Klarman Reference Klarman2004, 453; see also Driver Reference Driver2011). In this view, court decisions are a close mirror of predominant social norms that reflect majoritarian attitudes, while social norms act as a strong restraint on court decisions. Judicial decisions that deviate from social norms and seek to change behavior are viewed with skepticism: they either fail to produce the change in behavior they desire or, worse, they cause people to lose respect for the court and to mobilize against its decisions. In this sense, the process approach builds on the political science research finding that judicial decisions are the product of political realignment and popular opinion (Dahl Reference Dahl1957), rather than organized legal capacity, litigation strategy, and doctrinal argument that puts pressure on judicial decision making (e.g., Vose Reference Vose1958; Lawrence Reference Lawrence1990; Epp Reference Epp1998). It also accepts the view of political scientists in the “court impact” tradition, dating back to the 1960s but most prominently associated with Rosenberg (Reference Rosenberg1991), who argue that court decisions do little to affect social behavior or attitudes.

Second, within the process framework, public opinion plays a role akin to “neutral principles” in limiting judicial discretion. Again, this view relies on the political science literature that finds a positive correlation between judicial decisions and public opinion, and suggests that this correlation may be read to show how opinion acts as a limit on judicial decision making, primarily at the Supreme Court level (Baum Reference Baum2011; Clark Reference Clark2011). This occurs through both mechanisms described above: as changing public opinion becomes reflected in changing voting patterns, which eventually translate into the political appointment of judges whose views generally conform to those of the ruling political coalition; and as judges respond directly to public and especially elite opinion about the issues they confront. In both versions, social movements play key roles in shaping judicial decision making, either through changing electoral coalitions and thus judicial appointments or by advancing new constitutional norms that shift attitudes more directly. In either version, public opinion operates as a proxy for judicial legitimacy: courts pay attention to opinion precisely because they are concerned about the need for sustained public support (Baum Reference Baum2011, 205).

In this way, public opinion serves as the neutral point around which judicial decision making varies (Friedman Reference Friedman2009). Courts are cautioned against getting out too far ahead of public opinion based on the idea that, if they do, the public either will ignore them or mobilize to reverse them—thus reflecting the political science claim, prominent in court impact studies, that behavior and attitudes are resistant to being influenced by the authority of the court. In this framework, maintaining law's independence from politics is equated with keeping it within the boundaries of public opinion and thus minimizing legitimacy costs (Eskridge Reference Eskridge2005). The fact that law reflects but does not produce significant norm change and is ineffective at enforcement argues for an implicit theory of judicial minimalism (Sunstein Reference Sunstein1999; Tushnet Reference Tushnet1999). Changing public attitudes is the function of politics; conforming to public attitudes is the function of law.

Finally, the process approach associates the concept of backlash with an implicit framework of institutional specialization. The role of public opinion in cabining judicial discretion is revealed in the mechanics of backlash. Under the backlash thesis, not only do courts risk legitimacy with the public at large by announcing decisions at variance with public opinion, they also risk harming the very movements they purport to advance. This happens when the discrepancy between what the court decides and what the people believe is too large, inciting “anger over ‘outside interference’ or ‘judicial activism’” (Klarman Reference Klarman2005, 473).

For backlash to work as a critique of adjudication in hard constitutional cases, it must make two counterfactual assumptions. First, it must leave open the door for an alternative means of protecting minority rights; otherwise, it would sanction ongoing minority oppression—which itself would have significant democratic legitimacy costs. By positing that legal change follows social change, however, the process approach solves this problem: because the court reflects but does not produce social change, it is forced to wait for such change to take place through other channels, and the background assumption within the process literature is that such change is forthcoming—it is only a matter of time until political, economic, and social factors coalesce to produce the attitudinal shifts that prepare the court to validate the new consensus. Backlash happens, in this view, when court decisions “alter the order in which social change would otherwise have occurred” (Klarman Reference Klarman2005, 473).

This leads to the second counterfactual assumption, which is that backlash would not have occurred if social change had proceeded through normal political channels. This institutional assumption depends on the notion that backlash either does not occur or is less likely to occur when law changes through other political channels precisely because of the presumption of majority acceptance of democratic lawmaking. In its strongest form, the backlash idea is that while the court has little power to do good in situations of low public support, it has great power to do harm. Thus, it would be better off to deploy a strategy of restraint and deferral. Again, in this model, it has to be that politics at some point opens up to minority groups; otherwise, they would be consigned to perpetual subordination. The implicit normative point is that social movements pursuing change should build power outside of law, through channels with greater institutional competence to handle their demands.

Within the process framework, Brown is the foundational case—as it was in Wechsler's (Reference Wechsler1959) original theory, which defended the substantive outcome but not the court's decision. Klarman's analysis of Brown could also be read to support the correctness of the substantive outcome of school desegregation, but not the court's prescribed course for getting there. In Klarman's account, law is not the cause of the court's decision in Brown, which is instead the product of “enormous changes in the surrounding social and political contexts” (2013b, 130). Although public opinion was moving forward during the time that Brown was considered (Klarman Reference Klarman2004, 6), there were still seventeen southern states solidly committed to Jim Crow and the political benefits to segregationists of opposing Brown were significant. Thus, the result of the court decision was backlash, measured by increasing violence against blacks, decreasing movement activism, a shift of political parties further toward virulent segregationism, and successful resistance to segregation (Klarman Reference Klarman1994).

However, it is precisely the repugnance of the South's response to Brown—symbolized in the ugly televised images of Bull Connor's attack dogs in Birmingham—that turned northern elite opinion firmly in favor of federal intervention, leading to the 1964 Civil Rights Act, which did provide the impetus for meaningful desegregation. Through this logic, which follows Rosenberg's (Reference Rosenberg1991) analysis, the substantive outcome of Brown is vindicated, though the process of its achievement is criticized. Institutional specialization is suggested by the assertion that it was “[o]nly after the 1964 Civil Rights Act threatened to cut off federal educational funding for segregated school districts,” enforced through executive agency action, that desegregation began to occur (Klarman Reference Klarman1994, 84). Brown is denied to have contributed to the 1964 Act by severing its connection to the protest phase of the movement: associating the decision with a decline in protest activity in 1954 and casting “significant doubt on any causal connection” between Brown and the Montgomery Bus Boycott (Klarman Reference Klarman1994, 86 n.9), which is widely viewed as initiating the movement's protest phase (Branch Reference Branch1988).

Although the process framework has been articulated primarily around the question of what role courts play in relation to law reform campaigns advanced by social movements, it also presents an implicit view of the role of social movement lawyers. If legal liberalism put lawyers at the center of social change, the process view of movement liberalism contains a spillover argument that implicitly views activist lawyers as either unimportant or potentially dangerous. The claim that social change, not legal investment, causes court decisions suggests that lawyers and litigation strategy matter little—or at least much less than politics—in shaping judicial outcomes. It is true that lawyers are needed to file the case that produces the court decision, but beyond that task, their work is overwhelmed by the powerful influence of exogenous social change, rendering movement lawyers bit players whose strategic decision making is tangential to the larger drama of constitutional reform. Yet the message communicated by the backlash thesis is that if lawyers push the court too fast, they may ignite a negative reaction that hurts the cause that they are attempting to advance. Taken together, this story can be read to say that although lawyers may not matter that much in doing good (because court decisions reflect underlying conditions), they do in fact matter in doing bad (because premature court decisions cause backlash against their movements).

This conclusion has two implications. One is that movement lawyers should pay less attention to using the courts as political tools; courts, at least at the apex, will make decisions once they are ready, not because of strategic investments by lawyers. The other implication is that lawyers, if they desire to produce social change, might do better to invest in advancing those social and political changes that do the real work, rather than litigation. In the new movement literature, the process view thus reinforces a critique of the hubris of legal liberalism, both of its lawyers, who self-confidently believed they could litigate the country into accepting their substantive values, and of the Supreme Court, which presumed that its intervention would cause a virtuous spiral of rule change leading to cultural change.

Other scholars have connected the idea of institutional specialization to the lawyering role.Footnote ¹³ In an early example, Tom Stoddard (Reference Stoddard1997) claimed that the goal of legal activism should be directed toward shifting culture, rather than rules, and suggested that this could be achieved more effectively outside of court. His case in chief also rested on the 1964 Civil Rights Act, which he viewed as an example of successful culture shifting. Stoddard (Reference Stoddard1997, 976–77) emphasized that it was important that change came from Congress, not the Supreme Court. “The new rules of law were widely disliked, especially by whites in the South, but the opponents of the Civil Rights Act of 1964 never rose in rebellion, either formal or informal, against enforcement of the statute. If the new rules had come down from on high from the Supreme Court, many Americans would have probably considered the change of law illegitimate, high-handed, and undemocratic—another act of arrogance—by the nine philosopher-kings sitting on the Court. Because the change emanated from Congress, however, such sentiments of distrust … never came to affect the legitimacy of this stunning change in American law and mores.”

More recently, Eskridge (Reference Eskridge2002) has elaborated an argument that cautions against lawyer influence over identity-based social movements that resonates with process concerns about democratic legitimacy and backlash. For Eskridge, constitutional lawmaking is an intrinsic part of identity-based social movements, which are channeled into court to contest violence and discrimination. However, Eskridge draws boundaries around appropriate movement lawyering by warning that too much lawyer influence can divert and co-opt movements' more ambitious goals: “once the lawyers get involved, legal reform comes to dominate other types of action more than before, and the movement as a whole tends to assume an increasingly lawyerly aura. This has consequences for the social movement: formal equality has dominated other goals because lawyers feast on formalisms; the movement has tended toward assimilationist and reformist rather than separatist and radical stances, because lawyers cannot defend the latter before judges and legislators who are their audience; and members of the minority who are the least like the mainstream American have tended to be left behind” (Eskridge Reference Eskridge2001, 467). More pointedly, when lawyers are not exerting a conservatizing force, they may risk inflaming opposition, harming the movement by provoking backlash (Eskridge Reference Eskridge2013). Thus, the boundaries of appropriate lawyering are narrowly drawn: subsidiary to other movement activism in order to avoid accommodation, while simultaneously careful not to provoke a “politics of disgust,” which may cause backlash that is “intensive and potentially violent” (Eskridge Reference Eskridge2013, 279).

Liberal

So-called footnote four liberals after Brown responded to the process critique by seeking to justify a strong role for judicial review on the basis of constitutional values as a defense of the Warren Court (Michelman Reference Michelman1969). This view was vulnerable to process-based (and conservative) claims of judicial activism, as well as radical left claims of political co-optation. It was therefore the most direct target of the CLS critique of rights, which sought to expose liberalism as an inherently limited progressive strategy (Tushnet Reference Tushnet1984). Beginning in the 1980s, CLS attacks on the indeterminacy of rights and their “legitimation” of injustice evolved into deep deconstructionist debates about the meaning of legal texts and the role of nonelites in authoring legal change (Minow Reference Minow1987). Within progressive legal thought, the liberal view thus sought to navigate the shoals of neutral principles and the critique of rights toward a middle-ground defense of legal liberalism.

The liberal approach within the new social movement scholarship similarly seeks to carve out a defense of Warren Court-style liberalism, only now on grounds less vulnerable to process and radical critiques. Its primary aim is to revive the positive legacy of seminal liberal legal decisions and connect them to affirmative accounts of judicial decision making and lawyering in contemporary politics. This defense is based on two moves designed to respond, on the one hand, to process concerns about preserving legal legitimacy and, on the other, to critical concerns about authorizing inequality.

The first move is to reframe the political science foundations of judicial decision making in ways that leave open a more affirmative role for social movements in shaping constitutional law. Liberals generally accept the political science view that courts are constrained by public opinion, which limits what is “constitutionally possible” (Balkin Reference Balkin2011, 11) and see courts acting to “ratify the views of national majorities and impose those views on regional majorities in states” (Balkin Reference Balkin, Hayman and Ware2009, 246). Yet liberals push back against strong process claims about the role of public opinion as a constraint on adjudication, arguing that the existence of constitutional anomalies—court opinions that either fail to suppress constitutional outliers or deviate significantly from the ideological center of the ruling political coalition—call into question the empirical significance of public opinion in shaping judicial decisions in hard cases (Driver Reference Driver2011, Reference Driver2014). Even those liberal scholars who accept public opinion as a constraint see the interaction between courts and social movements in a more active light than their process counterparts. Social movements matter because they affirmatively influence public opinion to shift the “boundaries of the reasonable, and the plausible,” in order to “open up space for new forms of constitutional imagination and new forms of constitutional utopianism, both for good and for ill” (Balkin Reference Balkin2011, 11), and the response of courts is not simply a one-way street, responding in lock-step to public opinion, but may contribute to new normative formations by nudging forward the values movements profess.

In this way, the liberal view imagines a more affirmative role for social movements in shaping adjudication. As discussed above, although the process view does not deny the influence of movements, it has tended to deemphasize their role by ascribing legal change to macro-level social changes, rather than specific social movement political strategies (Klarman Reference Klarman2004). The liberal view adopts a more positive account of movements generally and court-based strategy in particular: movements are critical players in reshaping politics, while court decisions are seen in a more productive light, as part of a democratic dialogue that invites “popular engagement” in which people debate the meaning of law “within the dense network of communicative exchange that sustains the democratic legitimacy of the Constitution” (Post and Siegel Reference Post and Siegel2007, 374, 389).

Second, liberal scholars tend to question the institutional assumptions of the process approach: namely, that court decisions deviating from opinion impose unique backlash and legitimacy costs. With respect to backlash, liberals call into question process theory's key counterfactual: that positive social change would have occurred in the absence of a court decision and such change would not have provoked backlash. This is Linda Greenhouse and Reva Siegel's (Reference Greenhouse and Siegel2011) essential claim about Roe: in contrast to backlash theory, they show how even before that Supreme Court decision, Republican strategists were using the abortion issue as a tool of party realignment by seeking to attract Catholic voters and social conservatives away from the Democrats—suggesting that countermobilization (or backlash) was already well underway. Roe may have intensified countermobilization, but it was a matter of degree and not of kind. In this sense, the liberal approach reframes backlash as normal politics rather than aberrational politics: instead of backlash constituting a distortion of a well-functioning political process for achieving a stable consensus, the liberal view positions backlash as part of the predictable back-and-forth of political struggle in which one movement's advance invariably provokes countermobilization.

Against scholars such as Klarman and Eskridge, this vision then reverses the law-politics framework posited by process theory, which suggests that legitimacy depends on decisions staying within the zone of political neutrality defined by reasonable variation around median public opinion. In contrast, liberals see an affirmative value in court decisions that potentially disrupt public norms and provoke counterreaction. For them, democratic legitimacy depends on the people believing that they have a role in constitutional interpretation, which they are able to express through countermobilization to “promote constitutional solidarity and invigorate the democratic legitimacy of constitutional interpretation” (Post and Siegel Reference Post and Siegel2007, 376).

In this way, liberals associate legitimacy not with the court staying out of politics, but with its deep involvement in robust dialogue and constitutional engagement with the people (Ackerman Reference Ackerman1998). Law is less sharply distinguished from politics: adjudication is framed as one strategy by which social movements seek political change (Balkin Reference Balkin, Hayman and Ware2009, 251). Courts “play a special role in this process” by virtue of exercising “a distinctive form of authority to declare and enforce rights” (Post and Siegel Reference Post and Siegel2007, 374). Liberals therefore see court decisions as vindicating important social values and argue in favor of “substantive constitutional ideals” (Post and Siegel Reference Post and Siegel2007, 377). As this suggests, liberals are more inclined to see a complex and multidirectional relation between law and social values, which may be reshaped through the process of democratic constitutional engagement.

It is precisely at the point of defining the content of “substantive constitutional ideals” that liberals have long run into trouble on the right and left. In the new social movement scholarship, liberal scholars seek to respond to both perils through the same basic move. The liberal view responds to the right by portraying constitutional change as the product of pluralism: the productive resolution of clashing bottom-up claims of legal recognition that work their way through the legal process and eventually make their imprint on law (Siegel Reference Siegel2006, 1330–31). It is the political work of these bottom-up movement processes that—even in their failure—change constitutional culture; not top-down, lawyer-driven, court-centered social engineering anathema to the right. Even when the courts “choose sides” in politics, they are presented as doing so with an invitation to the losers to continue the dialogue.

On the left, the liberal view simultaneously marginalizes the radical critique of legal liberalism associated with CLS and avoids the core representational concerns raised by left critics. CLS's critique of legal liberalism had presented social movements as an implicit political alternative: by exposing the legalist strategy as a barrier to deep change, the field could be cleared to permit social movements to gain power and fundamentally to reshape the system. Movement liberalism blunts this aspect of the CLS critique by embracing movements as the primary engines of change, but does so toward the end of defending (and redefining) the mainstream liberalism against which the critics recoiled—yet which now has come to occupy the far left in the contemporary (more moderate) political landscape. This is an important political dimension of the new movement literature overall: by placing movements at the center of analysis, the political project is to reclaim mainstream liberalism, not to advance more radical political ends.

By centering movements—and de-centering courts and lawyers—the liberal view also seeks to respond to the left critique of legal representation: that the creation of constitutional norms under legal liberalism was the product of an elitist liberal vision that ignored or deemphasized the views of the marginalized communities lawyers purported to represent. This was Bell's critique of the NAACP “serving two masters,” and it was expressed in the poverty law critics' discomfort with traditional forms of legal representation (White Reference White1990; López Reference López1992). In the new literature, liberals generally avoid this concern by deemphasizing the dynamics of representation and the role of lawyers.

In a point of connection between the liberal and process approaches, lawyers play a lesser part in liberal social movement accounts of constitutional change; they are subsidiary to the main action advanced by movements in which voices of dissent are sometimes acknowledged but not central to the story. Litigation happens, often as a strategy of last resort (Balkin Reference Balkin, Hayman and Ware2009), but it occurs against the backdrop of political mobilization, rather than the reverse. Siegel's work is important in this regard. Although her progressive movement stories reference lawyering, and culminate in court decisions, the primary action is outside of court, in the political debate that surrounds and ultimately informs doctrinal development. For example, in her important account (Siegel Reference Siegel2006) of the “de facto ERA”—the constitutionalization of antidiscrimination protection for women through courts against the backdrop of debate around the politically doomed constitutional amendment for equal rights—although movement lawyers set the frame for strict scrutiny analysis and argue in favor of a “dual strategy” of law and politics (Siegel Reference Siegel2006, 1367), their work is largely eclipsed by the more central movement-countermovement dynamic between ERA proponents (such as Betty Friedan and Bella Abzug) and Phyllis Schlafly's STOP ERA (Siegel Reference Siegel2006, 1389).

Yet there is a tension between the liberal embrace of the power and authenticity of bottom-up movements as social change agents and its commitment to elite politics, which are not only compatible with the liberal view, but essential: because minorities (like blacks in the Jim Crow South) cannot influence politics alone, they have to form alliances with those in power. This does not mean simply selling out: alliances can come through the application of pressure won through protest. As Balkin puts it, movements succeed when they achieve enough political power that they “become important to majorities” (Reference Balkin, Hayman and Ware2009, 250). However, the gains from that power operate through elite-mediated political reforms within the structures of democratic pluralism. In this way, movement liberalism reconstitutes pluralist interest group theory on the foundation of social movements.

Because of this, lawyers occupy an uncomfortable role in liberal social movement theories of courts: in order for the pluralist account to work, lawyers have to be genuine representatives of bottom-up democratic processes, not the independent rights-claimers condemned by critics of legal liberalism. Liberal constitutional theory achieves this in large part by shifting focus away from lawyering and endowing movements (or movement organizations) with the primary authority to make constitutional law. Yet this account is only plausible in a context of movement cohesion and to the extent that one imagines lawyers as exercising little discretion in the process of client selection, issue framing, and substantive argumentation over the content of constitutional norms. In this way, strong lawyers are a problem in the liberal account, causing it to shade too closely back into legal liberalism. As a result, the liberal scholars of movement-led constitutional reform marginalize lawyers even as they attempt to recover an affirmative role for courts in progressive social change.

Within the movement lawyering literature, there is a parallel move to reconstruct the role of lawyers in rebuilding political liberalism that seeks to avoid critiques that lawyers co-opt movements through overinvestment in law and the misrepresentation of constituent interests. Responding to the claim of overinvestment in law, movement lawyers are portrayed emphasizing culture-shifting outside of courts, connecting litigation to other forms of politics and public relations (Cummings and NeJaime Reference Cummings and NeJaime2010). Movement lawyer responsibility for bad outcomes is questioned by suggesting the inevitability of backlash and showing how movement lawyers sometimes lack control over the timing and content of frontal constitutional challenges (Dorf and Tarrow Reference Dorf and Tarrow2014). The liberal view presents positive portraits of lawyers collaborating with elites to produce change, while seeking ways to protect movements from state co-optation (NeJaime Reference NeJaime2012a).

Yet as the literature on movement lawyers turns attention to the lawyering process, it expresses a disinclination to engage with internal movement schisms over what counts as relevant constituency interests. Instead, as described above, movement lawyers are portrayed as expert professionals, lending critical legal resources to advance strategies defined by their social movement organizational clients. Internal SMO dissent is either ignored as outside the scope of organizational representation, which serves interests defined by organizational leaders, or dealt with through representational choices seeking to minimize conflicts of interest. In general, liberals express greater comfort ceding some decision-making authority to lawyers, particularly in contexts in which the harms to marginalized communities are clear and lawyers have relative expertise and/or alternative structures of movement representation are weak. Harkening back to the earlier public interest law tradition, some liberal scholars have advocated for more expansive forms of representation in contexts where direct democratic participation by marginalized groups is unlikely or impractical. In this vein, Mark Aaronson's (Reference Aaronson2012, 973) historical account of lawyering against welfare reform in California under Governor Reagan articulates conceptions of representation in which “traditional ethical concerns about client control and accountability” give way to an emphasis on “predictability” in order to facilitate “group legal representation as a form of political action.”

Pragmatic

The pragmatic approach within the new social movement literature shares many of the basic political values of liberalism and a skepticism of court-centered, lawyer-driven social change—but does so on different grounds and for different animating reasons. Left critics of CLS—focusing on intersectional analyses of race, gender, sexual orientation, and other identity-based hierarchies within CLS's overarching class frame—often sought to defend a pragmatic conception of rights mobilization as a viable political strategy within liberalism, despite its flaws (see, e.g., Crenshaw Reference Crenshaw1988). The primary concern of these scholars was to ensure that rights strategies reflected authentic participation and sensitivity to the ways in which different forms of social power were exercised outside of but also within communities of resistance.

These pragmatic scholars have turned to social movements as a rejoinder to both the mainstream liberal inattention to representation and the utopian CLS claim that something better would follow the decline of liberal capitalism. As such, the pragmatic approach to movement liberalism is quintessentially liberal, not radical: its primary aim is to deepen democracy through robust participation in and authorship of social movement activism. In this strain of the literature, social movement activists represented by lawyers but also “representing themselves” become “important interpretative communities of our democracy” (Guinier and Torres Reference Guinier and Torres2014, 2781). The difference between the pragmatic and liberal approaches is that the pragmatists are more apt to see meaningful and sustainable legal change as emanating from those authentic voices at the bottom of social movement hierarchies. Its main point of departure from the liberal view is in its emphasis on nonelite representation. Pragmatists thus differentiate their project both from legal liberalism and from what they view as more elite-oriented movement liberalism in terms of how they understand positive outcomes, appropriate means, and representational practices.

First, with respect to outcomes, pragmatists differentiate sharply between the achievement of positive law and deeper social change, and cast the legal liberal project as either primarily interested in the former (law on the books) or overly optimistic that positive legal change could eventually translate into enduring normative and behavioral change. Guinier and Torres (Reference Guinier and Torres2014, 2748–49), in discussing the legal liberal model of the NAACP, suggest that its approach to changing law “sector-by-sector” was “important but insufficient” precisely because “the required focus on doctrine and rules deflected time, energy, and resources from the harder work of changing the culture.” In this sense, law is distinguished from society or culture, and the pursuit of positive law reform is seen as inadequate to the goal of permanently changing attitudes and norms. Legal liberals are accused of pursuing one-off rule change rather than “significant, sustainable social, economic, and/or political change” that “can permanently alter the practice of democracy by changing the people who make the law and the landscape in which that law is made” (2750).

Second, the pragmatic approach is deeply skeptical of court-focused law reform. This skepticism stems not only from a view about the inherent limits of litigation, but also from concerns over the inevitability of litigation's slide into elite control. In short, it responds to the foundational critique of accountability. Thus, the pragmatic view seeks to expand “beyond litigation-centric social change, which is often driven by national elites. … [It is] not a critique of tactical litigation per se, but of the tendency in litigation to migrate from tactics to strategic centrality in theories of change” (Guinier and Torres Reference Guinier and Torres2014, 2756). This is true even when the lawyers themselves may be personally committed to playing a subsidiary role due to the institutional processes by which litigation gains attention, funding, and prominence within movements (see Lee Reference Lee2013; Carpenter Reference Carpenter2014; Leachman Reference Leachman2014). Litigation works, in this view, when it is firmly anchored to social movement organizing and strongly controlled by social movement constituents (Guinier and Torres Reference Guinier and Torres2014, 2781). In this sense, the pragmatic position sees the potential of legal mobilization to reshape culture, but tends to anchor that potential outside of court, where nonelites can control the agenda and the direction of reform.

Third, the pragmatic vision seeks to decouple movements from elite influence in order to position them as engines of authentic, bottom-up social change. The stories within the pragmatic vision are therefore quite different from those within the process versus liberal debate. Instead of tracing the change-making power of relatively cohesive movements in national politics, emphasizing elite voices like King or Friedan in the process, the critical vision tends to focus more carefully on movement dynamics at the local level, where the lesson is often one of more radical movements being co-opted either by elite lawyers or elite movement leaders more concerned with mediation between movements and power holders than authentic representation. This then leads to the core of the pragmatic vision, which differentiates between nonelite and elite interests within the movements themselves—associating transformative change with the activism of the nonelite factions.

In Guinier and Torres's (Reference Guinier and Torres2014) prominent account, nonelite interests are betrayed by mainstream lawyers and movement elites, both of whom threaten the transformative cause by seeking reform that operates too squarely inside institutional politics. Guinier and Torres's example of the efforts of Mississippi Freedom Democratic Party (MFDP) members to be recognized as the state's official delegates at the 1964 Democratic National Convention illustrates this approach. They characterize the MFDP's effort as a “challenge to state power [that] came from outside the precincts of normal politics” (Guinier and Torres Reference Guinier and Torres2014, 2770). As a result, the efforts of their lawyer, white elite Joe Rauh, to negotiate a settlement in which the MFDP would gain a compromise of two seats, rather than its desired full share, constituted a failure to appreciate the nature of the MFDP challenge: as an outsider to the community and a well-connected white liberal serving multiple “masters,” he “misunderstood the power of the MFDP, which he tried to channel into conventional deal-making” (2770). When the MFDP pushed back on this compromise, it was again misrepresented by none other than Martin Luther King, Jr. himself, who “sought to preserve his own status as an individual power broker” instead of advancing the “larger vision of justice” embraced by the MFDP (2774). Thus, in the end, it was the failure of accountable nonelite representation—both legal and political—that undermined the MFDP's most ambitious goals.

This contrasts with the story of Fred Gray's Supreme Court litigation in relation to the Montgomery Bus Boycott, where the Montgomery Improvement Association (MIA) “was a constituency of accountability, capable of holding lawyers like Gray to the discipline of shared power” (Guinier and Torres Reference Guinier and Torres2014, 2779). Although the case he filed permitted the MIA to avoid a state court injunction and emerge from the boycott victorious, because his lawsuit operated within the movement campaign, it was consistent with a “theory of popular mobilization and a theory of representative democracy.”

Lawyering scholars in this pragmatic vein have similarly highlighted participation and control by nonelites as the touchstone of movement lawyering. Reflecting on Gideon, Alfieri argues that “legal process and client-centered models of lawyering … focus on adversarial rights and material outcomes at the expense of democratic empowerment and minority collaboration” (Alfieri Reference Alfieri2005, 1463). In his essay on the legal profession, Aziz Rana (Reference Rana2009) contends that the primary failure of ethical conceptions of lawyerly “independence” has been their linkage to elite politics in which lawyer-statesmen exercise individual leadership instead of promoting popular forms of participation. Rejecting models of ethical discretion as “softer versions of the legal guardian idea,” Rana argues for a vision of independence in which “attorneys should employ their discretionary judgment to strengthen the capacity of social groups to intervene in administrative decision making and create more participatory modes of economic and political governance” (1703).

This view connects with the “collaborative lawyering” model advanced by Piomelli (Reference Piomelli2006, 548): “At its core, collaborative lawyering is an effort to practice, promote, and deepen democracy—more precisely, a participatory democracy in which individuals and communities flourish by unleashing their full energies and potential in joint public action.” In these visions, the intellectual forerunner is John Dewey (not Louis Brandeis); the heroes are nonelites like Fannie Lou Hamer, Ella Baker, and John Lewis (not King), and the iconic organizations are the MFDP, SNCC, and Students for a Democratic Society (not the Southern Christian Leadership Council or the NAACP) (Piomelli Reference Piomelli2006).

Tomiko Brown-Nagin's (Reference Brown‐Nagin2011) story of movement lawyering in Atlanta is another illustration of this approach. Focusing on the power of dissent by nonelites within movements, she contests the dominance of NAACP lawyering in the civil rights era by drawing attention to the work of more radical grassroots lawyers, representing groups like SNCC and the Committee on Appeal for Human Rights, which rejected the incrementalism of NAACP attorneys to file omnibus litigation challenging segregation in all Atlanta municipal facilities (Brown-Nagin Reference Brown‐Nagin2011, 207). These “movement lawyers” developed more embedded relationships with the direct action elements of the civil rights struggle, coordinating legal work with organizing tactics, and in so doing achieved success that the NAACP did not at the local level. In this way, Brown-Nagin's work reveals a version of movement lawyering that responds to Bell's critique of the NAACP “serving two masters” by representing nonelite movement actors with the courage to “dissent” from mainstream visions (440–41). “For the movement lawyer, the connection to community increases the likelihood of accountability. Rather than first identifying a goal and then rallying the community to the cause, the movement lawyer sets an agenda and determines goals only through collaboration with local communities and organizations” (441).

In the new social movement literature, the pragmatist vision thus places accountability to nonelites at the center of the lawyering model by promoting direct constituent participation in constructing movement goals and strategy—which adapts in response. Lawyers in this framework are committed to the movement's cause, though from a professional position more akin to outside counsel for movement organizations. The normative takeaway from the pragmatic vision of social movement lawyering is that lawyers should collaborate with, and ultimately stand behind, movements, supporting them as necessary, but taking care not to lead.