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Legal Change: Lessons from America’s Social Movements

The Bren­nan Center for Justice at NYU School of Law was foun­ded 20 years ago as a living memorial to the values and vision of the late U.S. Supreme Court Justice William J. Bren­nan, Jr.

For two decades, we have fought to reform and revital­ize our nation’s systems of demo­cracy and justice, forging a distinct model — part think tank, part legal advocacy group, part commu­nic­a­tions hub — to spur last­ing social change.

In Legal Change: Lessons From Amer­ica’s Social Move­ments, the Bren­nan Center asked a series of thought lead­ers and social justice advoc­ates — from the fields of phil­an­thropy, academia, organ­iz­ing, and more — to share their exper­i­ences fight­ing for legal change in this coun­try. We posed the ques­tions: Is it neces­sary to first win in the court of public opin­ion before the court of law? Does litig­a­tion prompt public atten­tion? Which creates longer-last­ing change — a favor­able legal ruling, or winning in the demo­cratic branches? What is the role of back­lash? What if the public is against your posi­tion?

With case stud­ies ranging from the victori­ous fight for marriage equal­ity to partisan wrangling over the right to vote, repro­duct­ive free­dom, the envir­on­ment, and the death penalty, Legal Change grapples with those ques­tions and shares remark­able accounts from decades of legal advocacy in Amer­ica.

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AnchorIntro­duc­tion

The Bren­nan Center for Justice at NYU School of Law was foun­ded 20 years ago as a living memorial to the values of the late U.S. Supreme Court Justice William J. Bren­nan, Jr. Known for his expans­ive vision of the Consti­tu­tion as a driver of social change and his belief in the trans­form­at­ive power of law, Justice Bren­nan inspired many reformers moved by the endur­ing Amer­ican values of demo­cracy, justice, free­dom, and equal­ity.

At the Bren­nan Center today, we seek to reform and revital­ize today’s insti­tu­tions in the light of those endur­ing values. We focus on the systems of demo­cracy and justice — the way our nation makes the decisions that most affect ordin­ary people. We believe those systems are badly in need of repair.

We have forged a distinct model to help spur that change. It is based on the belief that last­ing social change comes from the creation of smart policy innov­a­tion driven by a motiv­ated public. In contrast to an earlier gener­a­tion of public interest lawyers, who might have begun by filing a lawsuit to address an injustice, we believe that it is neces­sary to win in the court of public opin­ion and to win in a court of law. We have built what we regard as a new model organ­iz­a­tion: part think tank, part legal advocacy organ­iz­a­tion, and part commu­nic­a­tions hub.

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We put this model into action most visibly in the fight to protect the vote. In 2011, 19 states passed 27 new meas­ures to make it harder to vote — the most since the Jim Crow era. Minor­it­ies, students, and the poor were hard­est hit. These sudden shifts drew little sustained atten­tion. In Octo­ber 2011, we released Voting Law Changes in 2012, which rigor­ously repor­ted that 5 million citizens could find it harder or impossible to vote. It was the lead story in The New York Times. And it fostered a fierce public debate. The Justice Depart­ment joined the fight. Together with allies, we worked to shift the terms of public debate. So that when the Center and other voting rights groups went to court the next year, every single one of the worst new laws was blocked, blun­ted, post­poned, or repealed. These rulings came from Repub­lican and Demo­cratic judges, state and federal. It was a tremend­ous victory for voters, and demo­cracy.

Today we are engaged in a similar drive to move the law across our issues. We are help­ing lead a decades-long drive to over­turn Citizens United and other misguided Supreme Court decisions that have given us a dysto­pian campaign finance system. We are push­ing our signa­ture proposal for univer­sal, auto­matic voter regis­tra­tion — a break­through reform passed most recently by Cali­for­ni­a’s legis­lature. We are work­ing to harness the tools of econom­ics and the cred­ible voices of law enforce­ment to end mass incar­cer­a­tion. And we are work­ing to protect consti­tu­tional values as the nation enters the 15th year of its fight against terror­ism.

In all this, we take our cue from Abra­ham Lincol­n’s admon­i­tion at another time of consti­tu­tional debate: “Public senti­ment is everything. With public senti­ment, noth­ing can fail; without it, noth­ing can succeed. Consequently he who moulds public senti­ment goes deeper than he who enacts stat­utes or pronounces decisions. He makes stat­utes and decisions possible or impossible to be executed.”

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As we proudly mark the Bren­nan Center’s 20th anniversary, we thought it a good time to dig deeper into the lessons learned from fights in which we have played a part, and from other social move­ments, too. Some have remark­able examples of success. The victori­ous fight for marriage equal­ity is the most obvi­ous stun­ning illus­tra­tion. The path forged by gun rights activ­ists to change the Supreme Court’s inter­pret­a­tion of the Second Amend­ment is another. Deep partisan wrangling over the right to vote, repro­duct­ive free­dom, the envir­on­ment, and the death penalty has caused these issues to be among the most divis­ive of our time. Conversely, for crim­inal justice reform efforts, trans­par­tisan alli­ances are driv­ing momentum for change.

We are honored and grate­ful that so many thought lead­ers repres­ent­ing these and other issues — as well as perspect­ives from phil­an­thropy, academia, and organ­iz­ing — are part of this public­a­tion.

To each of the contrib­ut­ors, we asked:

  • Is it neces­sary to first win in the court of public opin­ion before the court of law? Or, conversely, does litig­a­tion prompt or direct public atten­tion? What are the risks and bene­fits of court rulings that are ahead of public opin­ion?
  • Which has a better, longer last­ing chance — a favor­able legal ruling or winning in the demo­cratic branches? Is the goal legal change … or change?
  • What to do when the thing you care about is the thing you cannot say out loud? Or when the public is against you? How to grapple when the issue is divis­ive racially or in partisan terms, but strategy suggests reach­ing a broader major­it­arian audi­ence?

Ulti­mately, we at the Bren­nan Center believe the insti­tu­tions of Amer­ican demo­cracy them­selves must be the subject of our energy and efforts. Those insti­tu­tions are badly corroded. Voter turnout in 2014 plunged to its lowest level in seven decades. Govern­ment is para­lyzed, polar­ized, over­whelmed by the new tide of dark money loosed by the Supreme Court’s rulings in Citizens United and other cases.

The kind of sweep­ing reform of the insti­tu­tions by which decisions get made requires deep, sustained, and at times jarring rethink­ing. The rami­fic­a­tions go well beyond any one set of issues. Those who care most about the social move­ments covered in this volume will find it increas­ingly chal­len­ging to hold ground or win victor­ies so long as the polit­ical and justice systems tilt ever more sharply toward an ideo­lo­gical extreme.

And the kind of insti­tu­tional reform needed to win will not come from a lawsuit, but rather an upsurge of citizen creativ­ity, innov­a­tion, and engage­ment.

Our deep­est thanks to the talen­ted staff and schol­ars who do this work, espe­cially our colleagues at the Bren­nan Center; the funders and donors for their invalu­able support and for making this work possible; and the allied organ­iz­a­tions from myriad fields who have given us the bene­fit of their wisdom and stra­tegic insight in this volume. We look forward to your part­ner­ship as we fight the good fight in the months and years to come.

Michael Wald­man
Pres­id­ent
Bren­nan Center for Justice at NYU School of LawAnchor

Legal Change: Lessons From Amer­ica’s Social Move­ments