One wouldn’t expect an organization committed to protecting constitutional rights to be as optimistic as the Center for Constitutional Rights is. The Supreme Court Term was a disaster in both outcome and process, with decades-old precedent swept away under the right-wing’s new judicial philosophy of “there are five of us and only four of you.” California’s rules against advertising yourself as a family planning center were struck down because, despite a paucity of evidence, it might have been religiously motivated. The Muslim Travel Ban upheld despite a mountain of publicly available evidence that it was religiously motivated. It’s not easy for litigators to maintain faith in constitutional rights when the Court’s not even making an effort to appear consistent.
The rest of the judiciary isn’t much better and getting more packed with incompetent hacks every day.
But the Center for Constitutional Rights, fighting for the constitution for over half a century now, has a simple *trick* for keeping spirits up in the face of the challenging atmosphere out there: “success without victory.”
While CCR attorneys hope to prevail whenever they level their resources at a violation, the mood set from the top — Executive Director Vincent Warren — is to embrace the fact that even a failed challenge can carry some measure of success. It may seem like small comfort for some, but CCR has learned to exalt in these successes.
The phrase comes from the early days of the organization, when it challenged the Nixon administration over Japanese internment camps from World War II that had never been decommissioned. The claim floundered, but the controversy surrounding the argument prompted the administration to pull the plug on the camps anyway.
More recently, the organization challenged the Obama Justice Department’s targeted killing policy and lost multiple times but ended up inspiring a Rand Paul filibuster and a whistleblower leak revealing the clandestine policy. As Warren puts it, the organization’s mission is to use litigation as a tool to identify problems and suggest solutions. Winning, while ideal, isn’t always necessary to serving CCR’s vulnerable clients.
In 2018, CCR’s efforts are focused, as always, on rights violations that they strategically believe they can successfully challenge. This year, the focus is on immigration, racial and religious profiling, Guantanamo detainees and torture law, and the defense of activists targeted by law enforcement. It’s a roadmap of the most egregious abuses in the country today. Reading up on CCR’s work is almost a pop quiz to see if you are mentally prepared to believe how brazen the people out there working to crush individual rights really are.
The Muslim Ban challenge, successful below before all manner of judges on both the right and the left, crashed on the shores of John Roberts’s mendacity, but CCR sees new avenues to challenge the law as applied. Justice Breyer’s dissent already flagged the fact that the U.S. Embassy in Djibouti appears to have gotten instruction from the State Department to compromise the process of granting waivers to Yemeni refugees fleeing American bombs. A combination of FOIA requests and litigation could begin to unravel process violations in the waiver system justifying another litigation challenge.
Hackneyed police procedurals sometimes place pushpins in a map to reveal that a hidden pattern to a criminal mastermind’s work. One can employ the same approach in Buffalo, NY, except the masterminds you’d catch would be the local police. Buffalo’s police hand out a whole bunch of vehicle tickets — and they just happen to do so in a ring around the area’s poor and minority neighborhoods. There are Scooby-Doo villains with more carefully concealed machinations. Residents driving in and out of their neighborhoods were stopped in the interest of generalized crime control — which is not one of those justifications for a Fourth Amendment stop — and handed massive fines, often resulting in people losing their cars. City revenues are up big and the powers-that-be seem content to keep these stops going until someone tells them they can’t.
Activists protesting a Louisiana pipeline have been met with resistance from a private military contractor hired by the energy company to control protests. In another instance of seeking success without victory, CCR is looking past winning individual victories for rights violations or prevailing in thorny eminent domain litigation and looking at the contractor’s licensing. Could the whole arrangement be a scandal in and of itself? Exposing corporate abuses may not be the standard route to a litigation win, but it’s all about serving the client and if the client’s need is to put a stop to harassment from rent-a-soldiers, there are more legal tools to get there than scoring litigation wins.
If you’re arrested in St. Louis County, Missouri and wondering why, your guess is as good as the arresting officer’s. In a chat with CCR Senior Staff Attorney Omar Farah, I learned about a policy reminiscent of the Old West that allows any law enforcement official to designate someone for summary arrest for whatever reason — a status provided to all other law enforcement personnel through a database. CCR and its partners investigating the practice uncovered instances of the designation landing on someone as retaliation for having hired a lawyer or on people wanted for questioning in matters that get closed long before they’re ever arrested. This haphazard system explains why when people are apprehended, they often never get interviewed. The temporary incarceration carries ripple effects with detainees missing work and family obligations. It should shock you not at all that this practice impacts certain populations disproportionately.
The constitutional landscape isn’t pretty, but when you adjust your expectations just a little and embrace “success without victory” there are a lot of ways lawyers can be useful to the cause without necessarily winning a case. It’s hard for lawyers to accept the idea of anything but a total victory, but thankfully CCR is pushing on in the face of a sometimes hostile judiciary and scoring those wins that other lawyers aren’t thinking about.
For Attorneys Fighting For Justice, ‘Success Without Victory’ Is A Mantra curated from Above the Law
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