[Thurgood] Marshall came to prominence as a lawyer because, for blacks and whites alike, he seemed to represent something much larger than himself. White lawyers and judges tended to see the young, confident, impeccably trained black lawyer as someone much like themselves. Black Marylanders did, too…. But each group wanted something different from the youthful lawyer whose presence in court seemed so disruptive of local racial mores. White lawyers seemed to desire, most of all, a person who could explain to a skeptical black public that the legal system treated them fairly. — Kenneth Mack, Representing the Race: The Creation of the Civil Rights Lawyer
Recently, when asked about whether he felt connected to the Black Lives Matter Movement (BLM), prominent African-American rapper Lil Wayne stated, in essence, that he did not feel connected to the movement at all and that it had nothing to do with him. Though he did notexplicitly disparage the movement itself, many conservative critics of BLM have leaned on this interview in much the same way as the white bar hoped to lean on Thurgood Marshall in the early part of the 20th century: they hope Lil Wayne — a person who, in their view, is representative — will help convince the skeptical Black community that “the legal system treat[s] them fairly.” In other words, conservative critics attempt to use Lil Wayne as a medium through which to argue that the criminal justice system in this country is equal and fair enough.
For these critics, at least those operating in good faith, the major civil rights developments from the 1960s, despite significant retrenchments in the decades that followed, were sufficient in and of the themselves to end the need to continue the push toward actual equality. To them, the present status quo is equal enough, and “refighting old battles” just drives the country further apart. What modern conservative critics forget, however, is that for large swaths of the white majority in the first half of the 20th century, the absence of formal slavery, the mere presence of three Reconstruction constitutional amendments and the now infamous separate but equal doctrine were also viewed as “equal enough.”
Many modern conservatives looking back on this history tend to assume that the road from Plessy v. Ferguson to Brown v. Board of Education was preordained, and further, that of course the civil rights movement was necessary and an inevitable result of pervasive discrimination in law and society. Yet this historical narrative is not the product of true inevitability, but instead merely a post hoc explanation flowing from modern national consensus and collective memory. Even most conservatives will not deny that at least some of the civil rights era developments were objectively “good.” The thing to remember, however, is that Brown v. Board of Education and the civil rights developments that followed were not inevitable destinations, but rather contingent on a number of factors. From a legal perspective, Brown was contingent on lawyers like Thurgood Marshall having a forum to air the grievances of the African-American community in an attempt to convince the white majority — represented in court by white lawyers and judges — of the inequities inherent to the legal system. In essence, these developments — which finally came after decades of active indifference — were contingent on the white majority listening to the struggles of this vulnerable insular minority group.
Fifty years from now, a new national majority may look back at this time period and potential future social and legal developments and conclude that those, too, were inevitable results evolving from social necessity. Yet, that similarly would be the wrong conclusion. We are now in a moment of contingency. If the majority fails to listen to the grievances of BLM, instead arguing that the status quo is equal enough, they run the risk not only of further damaging essential human rights of US citizens, but also — like the architects of Jim Crow and “separate but equal” — risk being painted as villains by future generations.
In Response to the 2016 Presidential Election
In the aftermath of a shocking 2016 presidential election, one which has many Americans questioning their notion of just how far this country has actually progressed, it is more important now than ever for those fighting to achieve real equality to remember the contingency of key victories of the past. Those victories were not predestined, but were instead contingent on vision, leadership and an unyielding commitment to the pursuit of true equality. Like the past, our future is not preordained. We must make sure to keep the lessons from history in our hearts as we, like our forebears, move forward to boldly face uncertainty.