Cause Lawyering: Then and Now

Mark Graber

For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021).  

In the beginning there was Salmon Chase and Jeremiah Black.  Salmon Chase was a Senator from Ohio, Secretary of the Treasury under President Abraham Lincoln and the fifth Chief Justice (counting Oliver Ellsworth) of the United States Supreme Court.  Before occupying these august offices, Chase gained a reputation as the leading lawyer litigating cases on behalf of fugitive slaves.  Black was President James Buchanan’s Attorney General and the author of Buchanan’s presidential message disavowing the presidential power necessary for responding to secession.  After occupying that august office, Black gained a reputation as the leading lawyer litigating cases designed to cripple Reconstruction.  Chase and Black were the founding cause lawyers in the United States.  Their divergence is a reminder that cause lawyering may be for good or evil.

American by Birth: Wong Kim Ark and the Battle for Citizenship tells the story of a subsequent litigation campaign in the nineteenth century.  As was the case with the litigation campaigns on behalf of fugitive slaves and unreconstructed southerners, prominent lawyer-politicians led the fight for the rights of Chinese immigrants and Chinese-Americans on the West Coast.  Thomas Riordan, who represented numerous immigrants and children of immigrants caught up in the immigration bureaucracy, was the chair of the San Francisco Republican Committee.  J. Hubley Ashton and Maxwell Evarts, who argued United States v. Wong Kim Ark (1898) before the Supreme Court, were leading members of the bar.  Litigation was typically sponsored by the Six Companies, an organization of Chinese merchants dedicated to the  rights of Chinese immigrants and their children, the right of Chinese immigrants to remain in this country and the right of their children to be recognized as birthright citizens of the United States.

Professors Carol Nackenoff and Julie Novkov tell far more than the story of a litigation campaign.  American by Birth provides an exceptionally accessible account of the history of birthright citizenship, the history of American citizenship, the political and legal imbroglios over Chinese immigration, the continued impact of race on American immigration, the personal story of Wong Kim Ark, a simple cook whose life from beginning to end was intertwined with the politics of race and immigration in the United States, and the legal story of United States v. Wong Kim Ark, a case that occurred when American officials refused to allow Wong Kim Ark back into the United States after a visit to family in China because, they claimed, a child born in the United States of immigrant Chinese parents was not a citizen of the United States.  This is a manuscript that could be read at the beach (or in the bleachers for those of us who like everything about the beach but the sand, the saltwater, and the sun) or assigned for a class.  Any person litigating immigration issues or making immigration policy will benefit from Nackenoff and Novkov’s handiwork.

The literature on litigation campaigns, legal mobilization and cause lawyering, Nackenoff and Novkov correctly note, focuses on lawyers in the twentieth century.  Gerald Rosenberg bases his controversial claim that lawyers cannot bring about substantial social change on the impact of Brown v. Board of Education (1954) and Roe v. Wade (1973). Michael McCann’s study of the movement for comparative worth points to the numerous ways in which legal mobilization may promote progressive causes even when the courts reject the central goal of the litigation campaign.  Charles Epp and Susan Lawrence emphasize the importance of support systems when studying the impact of such organizations as the American Civil Liberties Union and the Legal Services Corporation on the rights of vulnerable persons.  Elizabeth Bussiere notes how the movement to have courts declare the Constitution protected rights to basic necessities floundered when the judiciary began turning right during the Nixon presidency.

The study of litigation movements and legal mobilization during the nineteenth century initiated by Americans by Birth supports, deepens, and modifies understandings of litigation movements and legal mobilization developed by public law scholars looking at twentieth century movements.  Consider how legal mobilization on behalf of fugitive slaves was analogous to legal mobilization on behalf of comparative worth. In both instances, judges were unreceptive to the underlying constitutional claims.  Richard Posner rejected comparative worth.  Joseph Story had no interest in protecting the rights of fugitive slaves.  These legal defeats were nevertheless entwined with political gains.  Salmon Chase successfully rallied many northerners to his antislavery cause, just as comparative worth advocates mobilized women to fight for their rights in other fora.  Bargaining in the shadow of the law helped both proponents of comparative worth and opponents of fugitive slave laws.  Some employers raised the salaries of predominantly female workers rather than risk litigation.  At least some slaves went free because their former masters, faced with considerable northern opposition to their claim of human property, either opted for settlements or simply abandoned the chase.

The litigation campaign against congressional reconstruction suggests that while courts may be poor vehicles for bringing about substantial social change, the judiciary is a fine forum for obstructing social change.  The Supreme Court during the last quarter of the nineteenth century tended to throw cold water on prosecutions of white supremacists who murdered African-Americans and in such cases as Williams v. Mississippi (1898) and Plessy v. Ferguson (1896) provided elected officials in the south with a roadmap for creating an American apartheid regime.  Rosenberg correctly notes that judges cannot perform substantial solos, but the evidence from Reconstruction suggests that neither the Congress nor the President can sing an aria in the absence of the entire federal chorus that fundamentally changes the basic structures of a regime.  Substantial social change requires the active cooperation of all three branches of the national government.  When defections (the courts in the 1870s) or mere passivity (Congress in the 1950s) occurs, relying on one branch only, no matter what the branch, is likely to be a “hollow hope.”

Novkov and Nackenoff tell the tale of an early legal support system.  Many Asian-American immigrants on the West Coast became successful merchants.  Eager to share their beneficence (and expand their consumer base), these merchants created a network of lawyers committed to protecting the rights of less fortunate Chinese immigrants and their children.  Wong Kim Ark could not have asked for better lawyers to defend his citizenship before the United States Supreme Court.  No justice staring at Maxwell Evarts, the son of one of the most prominent lawyers of the middle nineteenth century, or Hubley Ashton, a founder of the American Bar Association, could believe for an instant the cause of birthright citizenship was remotely radical.  Other Chinese immigrants and Chinese-Americans had access to outstanding legal talent when their cases were being litigated.  As important, the Six Companies, as the leading association of Chinese merchants was called, were able to establish a legal support system that enabled many Chinese immigrants and their children to understand what they had to do to protect their rights.  Directly or indirectly through legal advice, Chinese immigrants and their children knew how to bring the right documents to the right officials.  They knew the correct answers to official questions.  The survived and thrived in the United States because they were learned in the law and, sometimes, even knew how to manipulate the law.

Wong Kim Ark’s citizenship and the legal struggles of Chinese immigrants in the nineteenth century raise questions about what we mean when we talk about judicial capacity to bring about or assist in the bringing about of substantial social change.  In one sense, all litigants claim to favor the status quo.  Wong Kim Ark claimed the Constitution had been committed to birthright citizenship since at least the ratification of the Fourteenth Amendment.    Thurgood Marshall claimed the right to attend desegregated schools also existed from 1868.  Legal victories from the perspective of the winner always maintain the constitutional status quo.  What constitutes social change on the ground is often unclear.  Marshall was clearly trying to change the racial status quo in the United States.  Jeremiah Black was clearly trying to prevent Congress from changing the racial status quo in the United States.  Novkov and Nackenoff suggest there was no established immigration status quo in the nineteenth century.  National immigration restrictions were new.  Precise procedures and statuses were contested.  Rather than bring about social change, Wong Kim Ark and his adversaries were better understood as fighting to establish a favorable status quo, such that when Donald Trump and his minions sought to abolish birthright citizenship that was seen as radical social change.

Cause lawyering in this constitutional and legal netherworld more often resembles trench warfare, where each side attempts to solidify their positions and move a foot in desirable directions, than a contest in which one side seeks to annihilate the other. Legal support and litigation, to mix metaphors, is more often done retail than wholesale. Laws exist that protect vulnerable population. The challenge for lawyers is to ensure the relevant populations know the laws, that the relevant populations are able to comply with those laws, and that those laws are not interpreted in ways that defeat their purpose.  Wong Kim Ark’s history demonstrates the value of “ordinary” legal representation.  He was able to enter the United States after one of his trips to his family’s ancestral home in China because a lawyer had told him, or through a chain of acquaintances, he learned from a lawyer, about the documents to bring, how to acquire those documents, and the rights answers to immigration questions.  Birthright citizenship, Nackenoff and Novkov detail, had always been the dominant understanding in the United States.  That understanding, however, was not so clearly established during the 1890s as to be immune from legal attack.  Birthright citizenship remained the law of the land because Wong Kim Ark had the legal representation necessary to persuade the Supreme Court not to move in directions preferred by those who would restrict Chinese immigration and citizenship.  Americans by Birth tells the story of the entrenchment of a distinctive status quo, birthright citizenship in constitutional law and Asian-American presence in the United States, rather than the tale of a dramatic regime change.

The lessons Nackenoff and Novkov teach about cause lawyering seem particularly appropriate to my home institution, the University of Maryland Carey School of Law.  This year, thanks (thanks, thanks, thanks) to an exceptionally generous gift from Marco and Debbie Chacon, the law school has established The Chacon Center for Immigrant Justice, which will provide (thank you, Maureen Sweeney) clinical services that will help immigrants navigate the immigration bureaucracy on the ground and a separate appellate clinic that will champion law reform.  No doubt students participating in that clinic will dream of winning a victory akin to the Wong Kim Ark of story, that dramatically alters the playing field for immigrant rights.  More likely, they will win victories akin to the Wong Kim Ark of Americans by Birth, that strengthen the immigrant community one by one and four and four by ensuring more immigrants know their rights, can exercise their rights, and have adequate representation when those rights are challenged.  Our books are filled with lawyers seeking to hit grand slams.  Americans by Birth tells the story of a constitutional double, but also the stories of lawyers who advanced the cause of justice simply by sacrifice bunts.