(Re)Framing Race in Civil Rights Lawyering

A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of color in civil rights, poverty law, and criminal cases. Part III evaluates the permissibility of racialized narratives and racially subordinating visions under what courts like to refer to as colorblind or race-neutral lawyering process traditions and legal ethics conventions, assessing their logic under naturalistic and necessitarian rationales borrowed from the science, literature, and symbolism of Jim Crow segregation excavated by Gates. A wide span of lawyers — criminal prosecutors and public defenders as well as civil rights and poverty lawyers — routinely craft such narratives and images in their work. Part IV puts forward an alternative set of race-conscious advocacy practices and ethics precepts infused by the antisubordination norms of racial dignity and equality garnered from the early black resistance movements documented by Gates for use in contemporary civil rights, poverty law, and criminal cases attacking legal, political, and economic systems of structural inequality