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A bit of civil rights history may be helpful here. Civil rights advocacy has not always looked the way it does today. Throughout most of our nation’s history—from the days of the abolitionist movement through the Civil Rights Movement—racial justice advocacy has generally revolved around grassroots organizing and the strategic mobilization of public opinion. In recent years, however, a bit of mythology has sprung up regarding the centrality of litigation to racial justice struggles. The success of the brilliant legal crusade that led to Brown v. Board of Education has created a widespread perception that civil rights lawyers are the most important players in racial justice advocacy. This image was enhanced following the passage of the Civil Rights Acts of 1965, when civil rights lawyers became embroiled in highly visible and controversial efforts to end hiring discrimination, create affirmative action plans, and enforce school desegregation orders. As public attention shifted from the streets to the courtroom, the extraordinary grassroots movement that made civil rights legislation possible faded from public view. The lawyers took over.

With all deliberate speed, civil rights organizations became “professionalized” and increasingly disconnected from the communities they claimed to represent. Legal scholar and former NAACP Legal Defense Fund lawyer Derrick Bell was among the first to critique this phenomenon, arguing in a 1976 Yale Law Journal article that civil rights lawyers were pursuing their own agendas in school desegregation cases even when they conflicted with their clients’ expressed desires.3 Two decades later, former NAACP Legal Defense Fund lawyer and current Harvard Law School professor Lani Guinier published a memoir in which she acknowledged that, “by the early 1990s, [civil rights] litigators like me had become like the Washington insiders we were so suspicious of.... We reflexively distanced ourselves from the very people on whose behalf we brought the cases in the first place.”4 This shift, she noted, had profound consequences for the future of racial justice advocacy; in fact, it was debilitating to the movement. Instead of a moral crusade, the movement became an almost purely legal crusade. Civil rights advocates pursued their own agendas as unelected representatives of communities defined by race and displayed considerable skill navigating courtrooms and halls of power across America. The law became what the lawyers and lobbyists said it was, with little or no input from the people whose fate hung in the balance. Guinier continued:In charge, we channeled a passion for change into legal negotiations and lawsuits. We defined the issues in terms of developing legal doctrine and establishing legal precedent; our clients became important, but secondary, players in a formal arena that required lawyers to translate lay claims into technical speech. We then disembodied plaintiffs’ claims in judicially manageable or judicially enforceable terms, unenforceable without more lawyers. Simultaneously, the movement’s center of gravity shifted to Washington, D.C. As lawyers and national pundits became more prominent than clients and citizens, we isolated ourselves from the people who were our anchor and on whose behalf we had labored. We not only left people behind; we also lost touch with the moral force at the heart of the movement itself.5

Not surprisingly, as civil rights advocates converted a grassroots movement into a legal campaign, and as civil rights leaders became political insiders, many civil rights organizations became top-heavy with lawyers. This development enhanced their ability to wage legal battles but impeded their ability to acknowledge or respond to the emergence of a new caste system. Lawyers have a tendency to identify and concentrate on problems they know how to solve—i.e., problems that can be solved through litigation. The mass incarceration of people of color is not that kind of problem.

Widespread preoccupation with litigation, however, is not the only—or even the main—reason civil