The great Civil Rights crusade of Martin Luther King, Jr. and his campaign of non-violent civil disobedience punctuated the signal failure of the American legal system to deal effectively with racial injustice. Despite the signal, but belated and tepid, impact of Brown v. Board of Education, in which the Supreme Court finally acknowledged its decades long error in holding that separate could be equal, it was ultimately only deliberate defiance of unjust laws that broke the back of legalized segregation.

The legal system, if not the legal profession, is, after all, inherently conservative. In the federal courts, judges, appointed for life, are pillars of the establishment. One may find less conservative and more conservative judges, but the idea of a radical judge is very nearly a contradiction in terms. Lawyers themselves are bound by a thicket of rules and procedures, deviation from which can be severely punished. (As Bob Woodward once said, journalists break rules, lawyers follow them.) Working within such a system raises questions sometimes about whether one is engaged in the dispensation of justice or merely the execution of process.

In a recent article, columnist Bob Herbert reflects on the tendency to celebrate the magnanimity of such figures as Martin Luther King, Jr. and Nelson Mandela even as we overlook the magnitude of the evil they confronted and their determination to end it. Herbert writes,

The primary significance of Mandela and King was not their willingness to lock arms or hold hands with their enemies. It was their unshakable resolve to do whatever was necessary to bring those enemies to their knees. Their goal was nothing short of freeing their people from the murderous yoke of racial oppression. They were not the sweet, empty, inoffensive personalities of ad agencies or greeting cards or public service messages. Mandela and King were firebrands, liberators, truth-tellers – above all they were warriors. That they weren’t haters doesn’t for a moment minimize the fierceness of their militancy.

Bob Herbert on Nelson Mandela (1918-2013), Jacobin. And in order to achieve the ends they sought, both of them resorted to extralegal and even unlawful means.

And so one of the questions that King and Mandela pose but do not answer for those of us who follow them is whether it is possible to achieve justice within the legal system.

A career representing employees and victims of discrimination is an ongoing effort to answer this question in the affirmative, to uphold the principle that individual rights can be vindicated under law, and to affirm the proposition that social change is possible through law. As we honor the contributions of King and Mandela and others like them, let us remember that their great triumphs were necessary because the legal system failed, and that we can perhaps best honor their memory by working to ensure that it does not fail again.


© Charles Williamson Day, Jr., 2016. All rights reserved.

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