Stealth Advocacy Can (Sometimes) Change the World

Margo Schlanger*

Below the Radar: How Silence Can Save Civil Rights. By Alison L. Gash. Oxford and New York: Oxford University Press. 2015. Pp. xx, 205. $45.

Scholarship and popular writing about lawsuits seeking broad social change have been nearly as contentious as the litigation itself. In a normative mode, commentators on the right have long attacked change litigation as imperialist and ill informed,[1] besides producing bad outcomes.[2] Attacks from the left have likewise had both prescriptive and positive strands, arguing that civil rights litigation is “subordinating, legitimating, and alienating.”[3] As one author recently summarized in this Law Review, these observers claim “that rights litigation is a waste of time, both because it is not actually successful in achieving social change and because it detracts attention and resources from more meaningful and sustainable forms of work such as mobilization, political lobbying, and community organizing.”[4]

Several particularly influential studies eschew the clear ideological position of the works just referenced; they offer what they claim is a purer empirical grounding for the conversation. These studies highlight backlash, purporting to demonstrate that many landmark decisions—among them, the U.S. Supreme Court’s Brown v. Board of Education and Roe v. Wade, the Hawaii Supreme Court’s Baehr v. Lewin, and the Massachusetts Supreme Judicial Court’s Goodridge v. Department of Public Health—have turned out to be not merely inefficacious but counterproductive, harming the very causes they aimed to assist because of the countermovements they provoked.[5]

But rights lawsuits have their defenders as well, among both advocates and scholars.[6] Many of these defenders agree with lawsuit critics that “activists and analysts” err, badly, if they assume “that litigation can evoke a declaration of rights from courts; that it can, further, be used to assure the realization of these rights; and, finally, that realization is tantamount to meaningful change.”[7] To use Professor Scheingold’s phrase, these assumptions are tantamount to a “myth of rights”[8]—and, like so many myths, this one does not reflect reality. A much more fruitful frame, Scheingold writes in his classic treatment, focuses on “the politics of rights,”[9] in which a right recognized by a court is “best treated as a resource of uncertain worth” whose “value . . . will . . . depend in all likelihood on the circumstances and on the manner in which it is employed.”[10] Accordingly, rights lawsuits—and the “cause lawyers” who bring them—can improve the welfare of their intended beneficiaries, by using litigation as a piece of a more comprehensive political strategy.

Continuing to quote Scheingold (but it could be any of a small library of consonant analyses), litigation and the rights it aims to vindicate are productive only if “useful for redistributing power and influence in the political arena.”[11] This can occur if litigation is used for “political mobilization and . . . in this way affect[s] the balance of forces.”[12] Introducing data from her interviews with dozens of leading public interest lawyers, Professor Rhode explains:

Part of the reason public interest groups have relied heavily on lawsuits is because they can sometimes mobilize such [financial and popular] support and because other options are less available. . . . As research on social movements makes clear, lawsuits can help frame problems as injustices, identify perpetrators and responses, and reinforce a sense of collective identity, all of which build a political base for reform.[13]

Rhode further summarizes: “In describing their most effective strategies, public interest leaders most often mentioned, in addition to impact litigation, coalition building and communication.”[14] And indeed, studies of the varied practices of advocates for whom litigation is an important tool find that litigation remains attractive to those advocates in large part because lawsuits provide a public focal point for organizing, possessing a “unique ability . . . to attract resources and publicity.”[15]

In Below the Radar: How Silence Can Save Civil Rights, Alison L. Gash[16] adds a key insight into the mix—and in the process demonstrates that litigation theory needs substantially more sophistication to catch up with smart lawyers. Sometimes, she argues, civil rights advocates and clients succeed not by using litigation to organize or mobilize movements, but by stealth—by keeping their cases quiet, “below the radar” of public notice and therefore of opposition. Gash develops two case studies to undergird the theoretical point. The first deals with parenting-equality advocacy on behalf of gays and lesbians, the second with group homes for people with disabilities or recovering from addictions. Each is interesting on its own, and each is well told. Gash doesn’t just summarize existing evidence; she interviewed dozens of advocates, and these form the core of her account. In addition, Gash conducted several very illuminating media-analysis studies.

Part I of this Review addresses the parenting-equality case study. I summarize Gash’s account and add to it the cautionary tale of the 2002 failure of stealth parenting-equality advocacy in Michigan. Part II addresses, more briefly, Gash’s group-home study. In Part III, I put Gash’s theoretical contribution into context. Her important and original contribution is her claim that civil rights litigation can succeed quietly, not just loudly. In evaluating this claim, I suggest that she might usefully have addressed the issue of whether stealth advocacy is really a subset of a broader category of efforts to first alter social facts on the ground, and then play defense to preserve that alteration.

*      Henry M. Butzel Professor of Law, University of Michigan Law School.

[1].     See, e.g., Donald L. Horowitz, The Courts and Social Policy (1977); Nathan Glazer, Towards an Imperial Judiciary?, Pub. Int., Fall 1975, at 104.

[2].     See, e.g., Jeremy Rabkin, Judicial Compulsions: How Public Law Distorts Public Policy (1989); Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (2003).

[3].     Robin L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713, 715 (2011).

[4].     Alan K. Chen, Rights Lawyer Essentialism and the Next Generation of Rights Critics, 111 Mich. L. Rev. 903, 922 (2013) (book review).

[5].     On Brown and Roe, the most well-known proponents of this backlash analysis are Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1st ed. 1991), and Michael J. Klarman, From Jim Crow to Civil Rights (2004). More recently, both Rosenberg and Klarman also addressed backlash to marriage-equality cases, including in Hawaii and Massachusetts. Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2013) [hereinafter Klarman, Closet to the Altar]; Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 419 (2d ed. 2008) [hereinafter Rosenberg, The Hollow Hope (2d ed.)]; Gerald N. Rosenberg, Courting Disaster: Looking for Change in All the Wrong Places, 54 Drake L. Rev. 795, 812–13 (2006). Klarman’s 2013 book is far less categorical in its claim of counterproductiveness than his 2005 article on the same topic, Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 482 (2005) (“By outpacing public opinion on issues of social reform, such rulings mobilize opponents, undercut moderates, and retard the cause they purport to advance.”).

[6].     See, e.g., Alan K. Chen & Scott L. Cummings, Public Interest Lawyering: A Contemporary Perspective 220–21, 521–22 (2013); Joel F. Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change 214–22 (1978); Gerald P. López, Rebellious Lawyering (1992); Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994); Deborah L. Rhode, Public Interest Law: The Movement at Midlife, 60 Stan. L. Rev. 2027 (2008).

[7].     Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change 5 (Univ. of Mich. Press, 2d ed. 2004) (1974).

[8].     Id.

[9].     Id. at 6–7 (emphasis omitted).

[10].     Id. at 7.

[11].     Id. at 8.

[12].     Id.

[13].     Rhode, supra note 6, at 2044 (footnote omitted).

[14].     Id. at 2048.

[15].     Gwendolyn M. Leachman, From Protest to Perry: How Litigation Shaped the LGBT Movement’s Agenda, 47 U.C. Davis L. Rev. 1667, 1687 (2014). Professor Leachman rests this summary—which she demonstrates applies to LGBT advocacy in California over three decades—on a large array of prior work, including, for example, McCann, supra note 6, at 54–60; Helena Silverstein, Unleashing Rights: Law, Meaning, and the Animal Rights Movement 71 (1996); Steven E. Barkan, Political Trials and Resource Mobilization: Towards an Understanding of Social Movement Litigation, 58 Soc. Forces 944, 954–55 (1980); Christopher Coleman et al., Social Movements and Social-Change Litigation: Synergy in the Montgomery Bus Protest, 30 Law & Soc. Inquiry 663, 668 (2005) (asserting that social movements used the law “as a rhetorical resource, as a ‘club,’ . . . an inspiration and an aspiration—to gain the upper hand in the conflict”); and Sandra R. Levitsky, To Lead with Law: Reassessing the Influence of Legal Advocacy Organizations in Social Movements, in Cause Lawyers and Social Movements 145, 145–46, 158 (Austin Sarat & Stuart A. Scheingold eds., 2006).

[16].     Assistant Professor of Political Science, University of Oregon.

Download as PDF