Ken Mack on Why History Matters to Scholarship on Law and Social Change

Mary L. Dudziak

We live in chastened times. A generation ago, young legal academics often desired to explain how the Supreme Court could be an effective participant in the social controversies of the day, and young liberal lawyers believed that public impact litigation could be an effective strategy for social reform. The most visible evidence for that optimism was the NAACP’s desegregation litigation that led to the Court’s decision in Brown v. Board of Education, which was conventionally seen as the opening act of the civil rights movement. At present, such dreams seem hopelessly utopian. Ambitious legal scholars now make their careers by explaining how, as a descriptive or normative matter,one should not expect courts to be agents of social change. Conservative lawyers, rather than liberals, spend decades developing strategies to effect public policy through the judiciary. Nominees to the Supreme Court routinely express the requisite reverence for the Court’s decision in Brown, and the equally requisite aversion to the judicial role that people once thought the decision symbolized. Historians, too, who once celebrated the NAACP’s school desegregation litigation as a guidepost on the road to racial equality, marked the half-century anniversary of the decision in 2004 with more regret than celebration. Some even lamented the disappearance of the black autonomy that is thought to have existed in a segregated society. In our own time, it has become common to rely on a familiar trope of social thought to explain these changing opinions on the role of law in American life. We are social realists now, the argument goes, and have left behind the liberal idealism of an earlier age. In Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement, Professor Tomiko Brown-Nagin steps into this contentious territory to show what legal history can contribute to a field where academic writing and political culture seem to have reached a confluence. She uses the local story of the movement in Atlanta to challenge what is fast becoming the received wisdom about an era whose history has become a touchstone for a much larger set of debates about the role of law in American life.

Despite its historical orientation, this particular school of thought has focused more on the question of what the Court can and cannot do as a general matter than on the more contextual question of how blacks and whites actually responded to the Court, and engaged with law more generally, during the civil rights era. The first of these questions is likely to prompt serious interest from political scientists and scholars of constitutional law, while the second is of more interest to historians. That is, a political scientist might ask a question like this: when and how can the Supreme Court be an effective proponent of social change? A historian, by contrast, would ask: how did blacks and whites respond to a world in which Brown had been decided? Historians are committed to explaining what happened in a particular context, while many political scientists are comfortable explaining trans-historical phenomena. This distinction between history and political science can be fuzzy around the edges, particularly for someone like Klarman who can write with considerable historical detail.