affirmative action; civil rights litigation; social justice; constitution


Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key location in which rights and social policies are contested and elaborated upon, even when progressive social justice groups may not choose the domain. Given this reality, there is value in determining what role courts can and should still play, while being attentive to movement lawyering and democratic critiques of litigation reliance. In Part I, this Essay begins by examining the current skeptical commentary on the role of courts and constitutionalism in progressive social justice advocacy. Part II considers the example of current affirmative action litigation, which illustrates the challenges that progressive racial justice movements face in advancing their conception of equal protection from a defensive litigation posture, as well as the profound stakes of such litigation. Part III sketches potential avenues for pursuing litigation that engage social movements and fill in litigation’s potential democratic deficits.