FIGHT OF THE CENTURY
Writers Reflect on 100 Years of Landmark ACLU Cases
Edited by Michael Chabon and Ayelet Waldman
Americans have always loved a courtroom drama. As attacks on the rule of law become more frequent and intense, the public has rekindled its often dormant affection for public-interest lawyers — endearingly unglamorous defenders of principle over politics, of rules over ruffianism.
And few organizations have received more of this love in recent years than the American Civil Liberties Union, which more than quadrupled its membership and raised nearly $120 million in the 15 months after the 2016 election. The organization has filed dozens of lawsuits challenging Trump administration policies, from migrant family separation to voting rights. In the Trump era, the A.C.L.U.’s work has moved from behind the scenes to center stage, and the organization acknowledged its new starring role in a full-page advertisement in The New York Times the Friday after the 2016 election, in which the executive director, Anthony D. Romero, warned that the president-elect would face “the full firepower of the A.C.L.U.” if Trump were to follow through on his more constitutionally questionable campaign promises. If there’s something of the action-movie hero in Romero’s rhetoric, that’s not coincidental; both the general public and the courts respond most reliably to simple stories — defender versus oppressor, freethinker versus censor, prophet versus mob.
Now, to mark the A.C.L.U.’s 100th anniversary, the writers and married couple Michael Chabon and Ayelet Waldman (a former federal public defender) have partnered with the organization to curate “Fight of the Century,” in which 40 literary superstars each respond to one of the landmark cases that the A.C.L.U. either litigated or supported. The predigested fact patterns that litigators deem suitable for court consumption are bland fare for a novelist’s palate, so it’s enlightening to watch some of our most masterly literary portraitists restore the warts and wardrobes, the motivations and machinations to those whose stories have been stripped down to surnames or pseudonyms: Ernesto Miranda, back in the Arizona State Penitentiary, being applauded by his fellow inmates when a television cop reads a suspect his rights; Norma McCorvey, a.k.a. “Jane Roe,” coming out as a lesbian, then turning to strict Catholicism and repudiating both her lesbianism and Roe v. Wade.
These accounts illuminate how lawyers, as well as authors, must be skillful narrative crafters, pruning and stretching the unruly features of real life to fit the law’s Procrustean parameters. Chabon entertainingly details the efforts of the A.C.L.U. co-founder Morris Ernst, a lawyer for “One Book Called ‘Ulysses,’” to get reluctant customs officials to play the role of villain — to actually seize Joyce’s novel — in order that he might stage his anti-censorship drama for the benefit of the federal courts.
Marlon James recounts how Lawrence v. Texas — which struck down anti-sodomy statutes — narrowly avoided becoming a different, deadlier, kind of case. In 1998, a white neighbor of John Geddes Lawrence Jr.’s had called the police to falsely report “a black male going crazy with a gun” at Lawrence’s home. Upon arrival, the police, weapons drawn, discovered Lawrence, who was white, and his partner Tyron Garner, who was black, engaged in sexual activity. It seems odd to feel relieved that both men were only charged with a misdemeanor under Texas’ sodomy law, but from Lawrence and Garner’s perspective, the case might feel more important as a bullet dodged than as a constitutional victory.
Indeed, the A.C.L.U. often selected its test plaintiffs with an eye to demographics, picking those who would be most palatable to a federal judiciary that was at first exclusively, and then overwhelmingly, white and male. While at the A.C.L.U., Ruth Bader Ginsburg famously chose male plaintiffs for several groundbreaking challenges to gender-discriminatory laws, assuming that the plight of unequally treated male plaintiffs just might seem more, well, relatable, to the exclusively male Supreme Court than if the plaintiffs had been female. And it is no accident that Jehovah’s Witnesses — white, Christian and of American origin — feature as test plaintiffs in so many early cases establishing core principles of freedom of speech and religion, including the right to remain seated during the Pledge of Allegiance. In a moving essay, Brit Bennett considers the very different reaction that a black man — Colin Kaepernick — provokes by his principled refusal to pay homage to a national symbol: “Kneeling during the anthem inspires rage because the issue, of course, is not the anthem or flag or military. The problem is black disobedience.” And Victor LaValle details the persecution of the Church of the Lukumi Babalu Aye (denomination: Santería) by the city of Hialeah, Fla., and by the lower federal courts, before the group’s freedom to worship was vindicated by a unanimous Supreme Court in 1993. If the Santería rather than Jehovah’s Witnesses had been the plaintiffs in the early religious freedom and free speech lawsuits, one wonders whether First Amendment law would have taken a very different path.
Although the A.C.L.U.’s “colorblind logic” might be effective as a matter of litigation strategy — assuming that a male plaintiff can be substituted for a female, a Jehovah’s Witness for a Santerían, a white supremacist for a civil rights activist, because the liberties, once won, will be available to all — this civil libertarian approach can yield problematic results given entrenched structural inequalities. This may be particularly true of the A.C.L.U.’s most controversial current position (at least among liberals): its insistence that corporations are entitled to the same political speech rights as individual citizens, and that spending money in elections is a protected form of speech. I was disappointed not to see Citizens United v. Federal Election Commission — possibly the most notorious Supreme Court case of the millennium — among the cases selected for discussion here, particularly since, in recent years, it’s been increasingly difficult to find mention of the A.C.L.U.’s role in Citizens United or its continuing opposition to campaign finance reform efforts. (A disclaimer here: At the Brennan Center for Justice, where I directed the Money in Politics project, I often litigated and advocated against the A.C.L.U. in its challenges to campaign finance laws, including in Citizens United, where I was counsel of record on a Supreme Court amicus brief supporting the F.E.C.) But I still count myself as a supporter of the A.C.L.U., as does Scott Turow, even though his essay on Buckley v. Valeo (the progenitor to the Citizens United line of cases) excoriates the A.C.L.U. for its position on campaign finance reform and even suggests that the A.C.L.U. “hides from its own actions out of apparent fear of diminishing its contributor base.” Given that this book so often lauds the A.C.L.U. for its defense of unpopular causes, it’s troubling that the A.C.L.U.’s own most unpopular recent case gets such short shrift.
In their introduction, Chabon and Waldman bemoan the fact that “nuance … seems to be in very short supply nowadays,” and certainly I would have welcomed a nuanced consideration of how an organization based on civil libertarian principles might need to rethink its foundational assumptions to counter structural inequality, or how an organization whose catchphrase has been “We’ll see you in court” will evolve in an era where the courts, and particularly the Supreme Court, might favor the powerful over the powerless. But heroism also seems to be in short supply these days, whereas bad actors continue to flourish and abound. So perhaps the public can be forgiven its appetite for courtroom heroes; perhaps the writers can indulge in some happy — albeit temporary — endings; and perhaps the A.C.L.U. deserves to take a victory lap for its many indisputable acts of heroism, and to put out of mind, for the moment, the uncertain road forward.