Courts as Forums for Protest
For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary’s role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The public law or structural reform litigation emphasized the judiciary’s role in implementing social change and not simply ordering private relationships.
The ongoing debate between these two views of the judicial role has obscured a third model of the role of courts in a democratic society; a model that has been ignored by legal scholars and viewed as illegitimate by some courts. That third, alternative perspective views courts as forums for protest. Under this model, courts not only function as adjudicators of private disputes, or institutions that implement social reforms, but as arenas in which political and social movements utilize to agitate for and educate about their legal and political agenda.
While victory is an important index of success in the first two views of the role of litigation, winning in court is not salient in forums of protest model. Of course, the litigators and their clients certainly hope, and at times expect to win in court; but their objective is broader than courtroom victory. They primarily seek neither the damages awarded to private litigators under the traditional model, nor the injunction of the public law model, but rather to use the courtroom struggle to build a political movement. The litigation can serve a variety of roles: to articulate a constitutional theory supporting the aspirations of the political movement, to expose the conflict between the aspirations of law and its grim reality, to draw public attention to the issue and to mobilize an oppressed community, or to put public pressure on a recalcitrant government or private institution to take a popular movement’s grievances seriously. What is decisive is that judicial relief not be viewed as dispositive: such relief is important but not the driving force of the litigation.
This model thus breaks down the traditional barrier between law and politics, but in a fundamentally different way than the law reform model. The traditional model attempts to shield the judicial process from the supposedly unsavory influence of politics, while the law reform model views politics as a necessary predicate to the courtroom drama. In this third model, the relationship between law and politics is reversed: a significant point of many of the cases is to inspire political action. The legal struggle is thus a part of a broader political campaign, not the engine of change itself. Even when public interest lawsuits prevail in court, often their most lasting legacy is not the relief ordered by the court, but the lawsuit’s contribution to the ongoing community discourse about an important public issue.
Constitutional Law | Courts | Law and Politics | Legal History | Legal Profession
Date of this Version
Jules Lobel, "Courts as Forums for Protest" (March 24, 2004). bepress Legal Series. bepress Legal Series.Working Paper 213.