The EO targeting lawyers and organizations that sue the federal government caught many by surprise. A frontal attack on the legal profession and lawyers was not among the emphasized areas of attack identified by scholars of authoritarian regimes, as high on the list of threats we should expect to encounter. It should have been. But experts who have dominated analysis of authoritarians have used Europe almost exclusively as their guide.
Many have forgotten that we have a homegrown experience of authoritarian political leaders that may prove more instructive. Looking to the history of how those leaders confronted resistance might have prepared us better for Trump’s latest tactics.
The use of litigation to challenge and disarm the aggressive actions of authoritarians is a uniquely American phenomenon that was developed and perfected by civil rights lawyers in the south. Challenging southern Governors who literally stood in the schoolhouse door and refused to obey court orders, or school officials who closed schools rather than integrate, or who misused funding to deny services to Black communities, or challenging the actions of city officials for engaging in discriminatory housing, zoning or transportation decisions, created the field of civil rights lawyering as a robust and effective tool in disarming the seemingly unchecked power of racist southern officials.
Although the Civil Rights Movement is remembered best for its dramatic, powerful and effective direct actions – boycotts, sit-ins and marches, equally important was the litigation that often cleared the paths for those direct actions to take place, and put recalcitrant racist Governors and local officials back on their heels with court orders that constrained their actions.
We remember the fire hoses turned on protesters, and the beating of marchers, but we may have forgotten how aggressively those authoritarians came after the legal arm of the Movement, which had begun to enjoy stunning success in the federal courts.
The state of Alabama accused the NAACP and the NAACP Legal Defense Fund (LDF) of engaging in a variety of illegal practices under state law, accusing the organization of paying clients, of organizing the Montgomery bus boycott, and of failing to register as an foreign corporation (the LDF is headquartered in New York). During the pendency of the case in which the state of Alabama sought the NAACP’s membership list, Alabama successfully barred the organization from operating in the state from 1958-1964. Similar charges were filed by the Texas Attorney General in 1956, who personally litigated the state’s case against LDF.
The state of Virginia likewise accused the NAACP Legal Defense Fund of violating a state statute’s governing solicitation of clients. LDF prevailed in that action finally in the landmark decision NAACP v. Button in 1963. Jack Greenberg, who succeeded Thurgood Marshall as LDF’s second Director-Counsel documents this history of multi-state attacks against LDF’s work in southern states in his seminal book Crusaders in the Courts.[vi]