Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935–85

Abstract

U sing the racial integration of national labor unions as a case study, I find that courts played an important and meaningfully autonomous role in integrating unions while elected officials largely failed to act. Courts, unlike elected officials, offered civil rights groups relatively easy access to the legal agenda. In response to thousands of cases in federal courts, judges rewrote key civil rights statutes, oversaw the implementation of their rulings, and used attorneys' fees and damage awards to impose significant financial costs on resistant unions. Court power was the product of multiple and historically contingent forces that involved the interaction of elected officials, civil rights activists, and the legal community. Elected officials delegated to the courts the power to enforce civil rights laws and tacitly endorsed procedural changes that augmented the courts' institutional powers and the legal community's professional influence. In response, judges and lawyers promoted and implemented a civil rights agenda far beyond the endorsement of elected officials. An historical-institutional approach helps explain how courts achieved and wielded independent power and the consequences of their action for civil rights, labor unions, and the American state.

Law and Social Movements: Contemporary Perspectives

“…In some successful struggles, lawsuits have failed to generate appellate decisions directly authorizing many of the new rights and remedies that activists sought. The ability to win at least some small advances on related issues and to win a hearing in court for major claims often poses enough actual costs (bad publicity, legal fees) and potential risks (of judicially imposed policies) to pressure opponents into making significant concessions (Frymer 2003). Moreover, the very framing of issues in terms of rights can transform debates and add weight to claims.…”

Outcomes of Two Construction Trades Pre-Apprenticeship Programs: A Comparison

“…DuBois (1935/1998) told how White workers in organized trades opposed the abolitionist movement for fear that free Black workers would underbid and compete for jobs held by White workers. After the Civil War and up through the Civil Rights movement, Jim Crow trade unions abounded (Frymer, 2003). After the passage of the Civil Rights Act of 1964, changes in the procedures for litigating made possible a wave of lawsuits that charged discrimination.…”

“…Initially, the focus of litigation was on voting rights and integration of schools, but then it turned to employment, and the building trades were in the crosshairs. Between 1965 and1985, the civil rights litigation against building trades unions was so relentless that some went bankrupt (Frymer, 2003). In Chicago, in the mid 1980s, some of the major building trades apprenticeship programs were placed under consent decrees as a result of civil rights lawsuits.…”

The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order

“…The seminal works in this literature include Whittington (2007Whittington ( ,2005, Gillman (2006Gillman ( , 2002, Pickerill & Clayton (2004), Clayton & May (1999), Lovell (2003, Frymer (2003Frymer ( , 2007, McMahon (2004), Hirschi (2004), Ginsburg (2003, Sweet (2000), Graber (1993), Lasser (1988, and Dahl (1957).…”