Asking hard questions about the law on Passover
One of the main themes of the Passover seder is asking questions. Early in the evening, the youngest child capable of reading (or singing) recites “Ma Nishtana,” which asks why we do things differently tonight—at the seder—from all other nights (we eat matzah, we all recline, etc.). Many parts of the seder are structured to prompt questions from the attendees, old and young alike. Those inquiries both allow and require participants to expand upon the telling of the exodus and reflect upon the meaning of the events, including some things that might not have satisfactory answers, such as why God decided to kill all the Egyptian firstborns before taking the Jews out of slavery.
Humans are more likely to listen to an answer when they’ve asked the question, unlike lecturing at someone whose interest may not yet be piqued. Some of the answers to common seder questions are well known and help pass along Jewish tradition and values. One of the responses we’re given by rabbis is “so that the children will ask.” Circularity aside, even the lack of clear answers prompts important debate that allows participants to reflect upon and clarify what Passover and Judaism mean to them.
Last year, around Passover, I was in the process of interviewing for a job as a public interest lawyer. In several of those conversations, I was asked to articulate how I thought litigation—legal action in court—could best advance a particular goal, be it property rights, free speech protections, economic liberty, etc.
Easy, I thought: identify sympathetic clients and cases with egregious facts and explain to judges and the public why such outrageous happenings violate the law. If the court rules your way, the precedent will then protect everyone.
That’s a good approach, and, as it turns out, that’s what Pacific Legal Foundation does—with some caveats. Last year, after PLF won three Supreme Court victories, a Sierra Club attorney told Bloomberg Law that PLF “will represent a landowner who potentially presents more sympathetic facts for the court to roll back environmental regulations than you would get if you are directly representing polluters.” The accusation made it sound like PLF used sympathetic clients as a smokescreen to covertly help less-sympathetic people; actually, our clients are sympathetic because what the government did to them was egregious, and that’s why we took on their cases.
But as Passover rolls around again and I consider how to prepare a first-time attendee for the seder’s unusual proceedings, I’ve been thinking about how litigation advances freedom. And while I’m lucky to work at a public interest law firm able to represent many sympathetic clients, unpopular clients and controversial court cases also advance the law and our collective understanding of its role in a fundamental way.
On clients and principles
Boston Massacre Trials
In 1770 Boston, as tensions were running high between civilians and the British soldiers enforcing the reviled Townshend Acts, a mob formed around several British soldiers. The mob hurled abuse and objects and a soldier eventually fired without order, provoking the others to do the same. Several people were killed or wounded. In the criminal case that ensued, leading patriot and future U.S. president John Adams defended the British soldiers against murder charges, in the interest of ensuring a fair trial. Adams was largely successful, persuading a likely hostile Boston jury that the soldiers had a legal right to fight back against the mob.
Adams later reflected that, while taking on the defense of the British soldiers made him the subject of strong public criticism, it was nevertheless “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” (Adams’ son, John Quincy Adams, followed in his father’s tradition not just in being elected president but in successfully representing before the Supreme Court several dozen abducted Africans who had revolted against and killed their captors on the Spanish slave ship, the Amistad.)
Unpopular as those British soldiers and Adams’ defense were, it helped ground the American Founding—and the public that would debate the values to be embodied in the Constitution—in the importance of the rule of law and the provision of due process even to disfavored groups.
Miranda Rights
There is, in fact, an entire class in law school devoted to the history of unpopular litigants who change the law: criminal procedure. Take as an example the famous 1966 decision Miranda v. Arizona, in which the Supreme Court overturned the rape and kidnapping conviction of a defendant who had confessed on the grounds that that confession could not be admitted at trial because Miranda had not been informed of certain constitutional rights before making it.
The decision was criticized at the time and Miranda was retried and found guilty again, but the recitation of the warnings in police procedurals ever since has ensured that few Americans alive today are unaware of their rights upon arrest. Even Justices who had been critical of the constitutional underpinnings of Miranda nevertheless declined years later to overrule it, stating that “the warnings have become part of our national culture.”
Skokie
Perhaps one of the most well-known examples of an unpopular litigant forcing us to question who we are as a society is the National Socialist Party of America, a neo-Nazi group that, in 1977, sought a permit to hold a white power demonstration in the Illinois village of Skokie, a then-predominantly Jewish municipality and home to a number of Holocaust survivors. Skokie successfully obtained an injunction in Illinois state court prohibiting marchers at the proposed rally from wearing Nazi uniforms or displaying swastikas. The Illinois appellate courts refused to expedite or stay the injunction, and the American Civil Liberties Union took the Nazis’ case to the United States Supreme Court, which ordered Illinois to hold a hearing, emphasizing the First Amendment rights at issue and the procedural safeguards the government needs to provide if it seeks to restrain speech.
The Illinois Supreme Court ultimately ruled that displaying the swastika is a form of speech entitled to First Amendment protections and that the Nazis could, accordingly, march in Skokie (the rally was ultimately held in nearby Chicago). The village’s ordinances requiring overly burdensome insurance coverage, prohibiting the dissemination of material inciting racial or religious hatred and prohibiting public demonstrations by members of political parties while wearing military-style uniforms were struck down as unconstitutional by the federal courts.
The ACLU lawyers had to explain to the court, the public, and many outraged ACLU members why this case mattered, and that explanation stuck in the memory of many curious and concerned Americans in a way an eighth-grade lecture on the Bill of Rights might not. In the words of the (Jewish) lawyer who represented the Nazis, “the power to censor Nazis includes the power to censor protesters of all stripes and to prevent the press from publishing embarrassing facts and criticism that government officials label as ‘fake news.’” That lawyer received threats for representing the Nazis, and the ACLU lost up to 50,000 members for taking the case.
Justice, like a seder, demands participation
Passover’s questions prod us to consider what it means to be free—and at what cost. When attorneys take on the causes of disfavored individuals or groups, it demands something similar.
It’s easy to support liberty when it protects people or causes that we like. But when it protects the rights of Nazis who wanted to march in Skokie, it makes us uncomfortable.
I doubt most First Amendment absolutists are pleased by an outcome in which Holocaust survivors were confronted by Nazis a world away from the continent they fled. But I suspect that those who think the courts got it wrong are also uncomfortable with the implications such a view implies for other minority viewpoints. Grappling with that tension between a preferred outcome in one case and the rule of law that protects us all is what forces us to think, individually and collectively, about trade-offs, appropriate limits on government power, and how we respond to those with whom we most disagree.
Unsympathetic plaintiffs and defendants force us to ask hard questions that lead not just to answers (satisfying or otherwise) but also to independent thought. That type of questioning is both the privilege and obligation of being a free people.
Chag Sameach.
