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Posted July 24, 2008 Faculty Workshops: In their own words / Kenneth S. Abraham

Civil Wrongs Do Not Bring Civil Rights: Civil Disobedience on Trial, 1964-69

I will present a workshop on a paper that is a chapter from my book, "Courage to Dissent: Courts and Communities in the Civil Rights Movement" (forthcoming, Oxford University Press). The book examines constitutional law and history from a local, or bottom-up, perspective. It explores relationships among national and local courts, the national and local civil rights bars, and national and local civil rights movements with a view toward enriching understandings of the relationships among public interest lawyering, social movements, courts and social change.

This particular chapter considers points of consensus and conflict between national and local authorities’ views about civil disobedience. It adds a layer of nuance to our understanding of the Warren Court’s race jurisprudence, and complicates our understanding of the civil rights movement’s relationship to the nation-state, by examining precedents in sit-in cases. The Supreme Court’s reputation as a guardian of civil rights rests, in part, on its record in sit-in cases. In this chapter, I examine two such cases, decided after passage of the Civil Rights Act of 1964. In the cases, the Supreme Court abated the convictions of civil rights demonstrators. The outcomes support the familiar story of the Warren Court: the liberal majority rose to protect civil rights. True enough.

But, for me, the more compelling narrative relates to matters of contestation and dissensus. Lessons lie in the divisions among the justices and the limitations of the majority opinion. The Supreme Court issued fractured opinions that show the justices grappling with — and avoiding — thorny issues at the intersection of race, politics and law. The intellectual conflict among the justices mirrored the social and political conflict in the country over the passage of the Civil Rights Act. In a compromise, the majority opinion left the way open for local judges and prosecutors to evade the rule established in its decisions. Predictably, many Southern officials checked the civil right movement’s momentum with the discretion left to them by the Court.

My workshop paper chapter zones in on such a case. It gives readers a birds-eye view of a civil rights demonstrator’s trial, held in the Fulton County Superior Court in Atlanta. There, a local judge, prosecutors and police officers targeted anti-segregation protesters after the Warren Court’s sit-in decision, just as they had before it. The saga illustrates an overarching thesis of "Courage to Dissent:" the full measure of Supreme Court doctrine can only be taken from below, by examining the experiences of local communities and the interaction of courts and doctrine with local actors and their social, political and cultural norms.

The workshop will be Aug. 5 at noon in the Faculty Lounge.