University Times

Jules Lobel

Americans view winning as a mark of success, but when it comes to arguing for justice in the courts, winning the case isn’t everything, Pitt law professor Jules Lobel maintained in a Jan. 31 provost’s inaugural lecture marking his appointment as the Bessie McKee Wathour Endowed Chair at the School of Law.

Lobel, who also is president of the New York-based Center for Constitutional Rights, has litigated human rights and constitutional rights issues including arguing for habeas corpus rights for detainees in Guantanamo and challenging presidential power to initiate war without congressional approval.

In recounting a career marked both by failures and successes in the courts, the struggle for justice is what matters, “much more than the victory or loss,” Lobel said in his lecture, “Success Without Victory: A Theory and Practice of Radical Lawyering.”

“In some of the losses I’ve done my best lawyering,” he maintained. “It’s the determination to struggle for justice despite the long odds and the perseverance to prevail in a difficult legal battle irrespective of the obstacles that give meaning to our lives, that make what we do have some significance, and that aid people who are oppressed and fighting for justice.”

Lobel said, “Many political movements throughout American history have used courts as a device not simply to win cases, but indeed sometimes in losing cases, as a form of protest, as a way of publicizing their cause and affecting public opinion.”

Lobel found precedent in American law dating back to the 19th century. “Litigation as a means of protest was common — uphill legal battles brought to challenge unjust policies as a means of educating the public or building political movements are a recurring thread throughout the tapestry of American law.”

Among his predecessors who influenced public opinion despite losing in the courts were Salmon P. Chase, who took on numerous anti-slavery cases in the decades before the Civil War — losing in the courts but turning public opinion through his arguments that slavery violated natural law, and Susan B. Anthony, who was arrested for voting in the 1872 presidential election.

“She foresaw the ensuing court battle as a way of dramatizing the fact that women didn’t have the right to vote and publicizing their cause,” Lobel noted, adding that the publicity surrounding Anthony’s case won sympathy and converts to her cause, even though the New York Supreme Court upheld her conviction on charges of illegal voting.

In recounting federal court cases that he litigated with the Center for Constitutional Rights in the 1980s and 1990s, challenging U.S. foreign policy, Lobel said his team was “spectacularly unsuccessful in the courts.

“We lost every case. Nevertheless I believed that all of our cases had sound legal theories.”

His challenge of the ban on Americans traveling to Cuba won unanimously in the 1st Circuit Court of Appeals, with then-Judge Stephen Breyer (now a Supreme Court justice) writing that no reasonable reader of the law could conclude that the president had the power to ban travel.

However, that ruling was overturned. “Unfortunately, five justices of the Supreme Court turned out to be unreasonable readers,” Lobel quipped, adding, “To this day, the travel ban continues, so Americans who want to go enjoy the beautiful beaches and friendly people in Cuba are subject to up to 10 years in jail and a $1 million fine.”

In another case, Lobel argued on behalf of 55 members of Congress who challenged George H.W. Bush’s power to “go to war to kick Iraq out of Kuwait without first getting congressional approval or authorization to do so.”

Lobel said, “The court held that the president couldn’t go to war without congressional authorization, that members of Congress had standing to sue, that the issue was not a political question but a legal question, that the court had the power to issue an injunction, but — and in all my cases, there was always a ‘but’ — and here, the ‘but’ was that the case was not ‘ripe’ because the war was still a month away and Congress as a whole had still not challenged Bush’s war-making power.”

In that case, both sides claimed victory, reflecting two competing views of law and litigation, Lobel said.

Under the mainstream view, articulated by the government’s lawyers, “The function of lawyers and lawsuits is to win either damages or injunctive relief on behalf of their clients,” Lobel said.

“The success of a lawsuit, under this traditional view, depends on the legal result — on whether the lawyer wins in court. This view reflects and mirrors a more general perspective in American culture, a deeply rooted value that elevates winning above all else.”

However, the plaintiff, California Rep. Ron Dellums, likewise claimed victory. “He said we won because the court had said the president couldn’t go to war on his own without congressional approval. And that was going to be used both by members of Congress and the public at large to develop public opinion against the president doing this.

“He thought the pressure would build, eventually forcing him to come to Congress. And he was right about that,” Lobel said, noting that Bush did go to Congress and narrowly got the necessary authorization for war to ensue.

“We had a different, and I believe radical, perspective on both law and litigation. While we wanted to win in court and we did everything we possibly could to prevail … our primary point was really to inspire political action. We used the law not merely to adjudicate a dispute between the parties, but to educate the public and aid political social movements, to create political opinion, public opinion,” Lobel said.

Later cases met with more success in the courts, he said, citing a case involving solitary confinement of prisoners in a maximum-security facility in Ohio. Although the case was deemed by other lawyers to be “a sure loser,” Lobel’s clients won in district and appeals court, but the Supreme Court rendered a split decision, ruling that they had a due process interest and a liberty interest and therefore had to be given a hearing “but that the hearing could be very minimal,” Lobel said.

Another major case in which Lobel said “nobody gave us a chance” involved habeas corpus rights for Guantanamo detainees.

“Predictably we lost in district court and in the Court of Appeals,” but, Lobel said, “what we had done, with what Susan B. Anthony called ‘keeping up the drumbeat of agitation’, we had continued to put out that these folks were in a legal black hole, that it was unjust.”

The argument developed some traction, first overseas and later in the United States, he said. “By the time the Supreme Court took the case, public opinion was beginning to turn” and in 2008 the court ruled in their favor.

Lobel currently is representing prisoners in California who are protesting their conditions of solitary confinement in a 2012 federal lawsuit filed by the Center for Constitutional Rights.

“The question in this case is, is it constitutional for the state to keep hundreds of people in small cells with no windows — you can’t see birds, trees, grass — 23 hours a day, with no phone calls, no programming? They get recreation in what amounts to another cell a little larger than the cell that they’re in… and many of them have been kept there for more than 20 years in these conditions,” Lobel said.

“It seemed to me when the prisoners contacted me that this ought to be the definition of cruel, to keep people in this situation.”

However, lawyers in California would not take the case, Lobel said, because the issues had been raised two decades ago. At that time, “one of the most liberal judges in the country held that this was unconstitutional if you could show that the prisoner was seriously mentally ill. But, absent of the showing of serious mental illness, this was not cruel and unusual punishment,” Lobel said.

The difference now is duration, he said. “It’s been 20 years and those people are still there. We’re saying duration matters. The state says you still have to prove they’re seriously mentally ill.”

Lobel argued, “In my view it raises the important question of what do we mean in the Constitution by ‘cruel’?

“Do we mean by cruel something that creates mental illness? Do we mean something that is inherently opposed to human dignity and what it means to be human? Being given the possibility of interacting with people, seeing your environment, etc.?”

Following his team’s victory in the Guantanamo cases, Lobel said The New York Times suggested that the lesson to be learned was akin to the children’s tale of “The Little Engine That Could”: If you battle great odds, if you take on these cases, you can sometimes win.

“That’s not the lesson I draw from it,” he said.

“The lesson I draw from it has more to do with the meaning of life and the meaning of what we’re doing. And that is: It is not the victory that matters. It’s not the winning that matters. I’ve been involved in many cases. Some of them I’ve won, some of them I’ve lost. To me it’s not whether I won or lost, it’s making a difference.”

—Kimberly K. Barlow