Newsletter #42: Class War in the Courtroom, with Laura Weinrib

by William Harris

What role do the courts play in the American cultural imagination? We know about the “copaganda” cluttering our TV screens and about Hollywood’s love affair with US imperialism. But the courts seem to represent something more elusive. In our national literature — Native Son, The Jungle, To Kill a Mockingbird — they often figure as sites of oppression, places where compelling arguments against the depredations of race and class might receive a hearing, but rarely result in justice.

In our popular culture — Law & Order and its many imitators — they represent sites of uncertainty, where justice sometimes prevails and sometimes lets criminals walk. The courts churn out liberal cults of personality while also serving as evidence of democracy’s rot. “The courts are not your friend,” you often hear in left organizing circles. Meanwhile, as anyone engaged in tenant organizing knows, they remain popular symbols of hope, of wish-fulfillment, of the chance to seek revenge on the landlord who illegally evicted you or threatens you out of the blue.

There is a backstory to these cultural tensions, as legal historian Laura Weinrib argues on this week’s episode of The Dig. For although the courts have long been a site of working-class oppression, where property rights were upheld over the rights of labor, starting in the 1920s, they were also home to a fascinating and ultimately failed left attempt to use the courts to advance the labor movement — to invent the concept of civil liberties as a way of protecting labor’s right to carry out class war.

Listen to this week’s episode here.

After listening to Weinrib’s revisionist account, what do we make of the American Civil Liberties Union (ACLU)’s strategy of indirection, in which it fought for free speech in the abstract in order to extract victories for a particular goal, labor’s right to strike? How to interpret the ACLU’s latest contortion, where a one-time revolutionary ally of the Industrial Workers of the World (IWW) now defends corporate claims to personhood? Rather than propose a guide for future left action, Weinrib brings to light a more fundamental and perennial insight: cutting through the thick of our national romance with the courts, Weinrib reveals the courtroom as a theater of class war like any other — a site of oppression, but also terrain necessary to fight on.

Further Reading To learn more about the IWW’s involvement with the so-called Free Speech Wars (and its eventual influence on Italian autonomist Marxists), check out Trevor Jones’s essay in Viewpoint Magazine, “Pork Chops for All! The 100th Anniversary of the San Diego Free Speech Fights.” And for further Dig listening, revisit our interview with legal scholars Aziz Rana and Amna Akbar and Movement for Black Lives lawyer Marbre Stahly-Butts on the Supreme Court and left debates on law and politics.