Litigation Campaigns and the Search for Constitutional Rules

This Journal's focus on appellate practice and procedure suggests that it might be appropriate and productive to take a somewhat unusual approach to Brown (1) and its significance. Brown was most important, of course, for its role in the transformation of American race relations. From the point of view of the appellate courts, Brown is significant in another way. Brown was the culmination of a sustained campaign of strategically designed litigation--or so it came to be thought. (2) Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed strategies to use litigation in the service of a wide range of causes: women's rights, prison reform, abolition of capital punishment, protection of property fights, and the undermining of affirmative action, among others. (3) In each of these campaigns, the lawyers of course sought favorable rulings from appellate courts. But--and this is my primary point--they typically sought favorable rulings of a particular type. In general, the ultimate goal was a simple and easily understood rule, parallel to the rule condemning state laws mandating the separation of children by race. The reason, I argue, is that favorable rulings that take the form of general standards are not nearly as useful to the cause lawyers, who typically have relatively limited resources and cannot afford to litigate the kinds of fact-intensive cases that standards (rather than rules) favorable to them generate. The NAACP's litigation campaign began with cases that sought to require school districts to take the equality component of "separate but equal" seriously. Initially the cases involved teachers' salaries. Some of these posed no serious litigation challenges, as when school boards conceded that they paid African American and white teachers different salaries because of their race. Others presented in the small the problem that broader equalization challenges would pose. In these more troublesome cases--from the litigators' point of view--school boards contended that they did not make their decisions explicitly on the basis of race, but rather paid salaries to teachers based on their qualifications. Penetrating that argument by showing that black and white teachers with equivalent qualifications got different salaries was sometimes difficult. How, for example, could one compare a teacher with a master's degree and five years of experience with a teacher who had no graduate degree but twenty years of experience? These litigation difficulties would have been immensely compounded had the NAACP attempted to enforce "separate but equal" with respect to the material conditions of elementary and secondary schools. (4) The lawyers would have had to make school by school comparisons, measuring many different characteristics of the schools: their age, the quality of their plumbing, their athletic facilities, their science laboratories, and more. Often, of course, the schools for African Americans would be unequal to the schools for whites with respect to every one of these characteristics. Sometimes, though, the litigators would have to persuade a judge that a newer school for African Americans without good science laboratories was unequal to an older, somewhat more run-down school for whites with better science labs. (5) In the abstract, these equalization cases could have gone forward. (6) The NAACP's litigators, though, did not have the resources to pursue them in any systematic way. The NAACP staff was limited, with no more than five or six lawyers available at any one time to deal with all of the legal issues the NAACP wanted to pursue. Further, the legal staff was located in New York, far from the Southern districts in which the litigation would have to be conducted. The legal staff tried to locate lawyers in each locality who could help out in carrying the burdens of litigation. There were few such lawyers, however, no more than one or two--if that--in the states in the deep South. …