Seizing the Reins of Power from Classroom to Courtroom: Good Trouble as Power Imperative

We already have power; the reins are in our hands. But we must use that power, especially in these existential times with democratic institutions under siege and education under attack. Good trouble means claiming our power to advance a movement that halts this anti-democratic onslaught and empowers activists on all levels of society to use the law to advance our own self-determination.

Look at where we are. THE MECCA.^[1] This is the Black intellectual capital of the world and the law school that engineered the primacy of the Fourteenth Amendment as a founding amendment of the Second Founding and our constitutional democracy. We gave meaning to the Reconstruction Amendments, we opened all avenues of society, we gave meaning to substantive equality, and we fostered hope for a true multiracial democracy.^[2] In this Third Reconstruction,^[3] we are facing something quite different from the first two. The first, saw the Supreme Court actively dismantling all the civil rights gains emanating from Congress’ enforcement power in the name of states’ rights—the first incarnation of post-racial federalism^[4]—where the Court expands state power under the guise of neutrality to preserve the color line and caste-based oppression. It would take fifty-eight years after Plessy, in Brown v. Board of Education to eradicate the color line. But the constitutional mandate had to be implemented—a reality that left Brown II a stunted legacy seventy years later. Retrogression, retrenchment, and reification are the defining features of racism in American society.^[5] And that brings us to today.

This symposium takes on added significance because we are conceptualizing our own empowerment through engagement and enlightenment which bring us to Seizing the Reins of Power: From Classroom to Courtroom.

The classroom is a site of power that leads to the courtroom. If you look at some of the pictures around the law school, you see powerful manifestations of the classroom: a young Spottswood Robinson as an assistant professor; Thurgood Marshall as a law student; Pauli Murray as a law student;^[6] Julia Cooper Mack as a law student;^[7] and Charles Hamilton Houston as dean working with the first generation of Howard University School of Law (“HUSL”) social justice engineers.^[8]

We use the title “social justice engineer” in a manner that is all encompassing; it reaffirms our legacy as the epicenter of the transformation of America from an apartheid nation to a nation that aspires to inclusion. But the obliteration of the color line was only the beginning. We have moved from dog whistle rhetoric, to post-racialism, to an authoritarian state built on the foundation of white supremacy. The concept of the social justice engineer must be fully conceptualized to address structural inequality and systemic racism—there must be critical discernment in our self-determination. Thus, how we teach determines our destiny.

Classrooms and courtrooms are complex spaces. They are sites of learning, empowerment, and advocacy, yet they also normalize neutrality and rationalize the present-day effects of past discrimination.^[9] Stare decisis, process, and procedure are elemental to the law, providing notice, consistency, and finality as legitimizing features of our legal system. But these features often dilute power. HUSL is a unique space because it is institutionally skeptical of neutrality but must still educate law students within the traditional legal canons. There is a tension here. Good Trouble^[10] means completely disrupting hierarchy and the pedagogical underpinnings that advance it in legal education.

There is a strain of American exceptionalism that resonates within American legal education—vaunted democratic constitutional principles like free speech, the rule of law, and equal justice under law are presented as bedrock principles notwithstanding the emergence of totalitarianism in an upside-down democracy where abnormality is rationalized as custom. This is achieved through perpetual misrepresentation, rationalization of distorted norms, and erasure of historical meaning. The classroom must be a bulwark against erasure.

This Essay offers some observations about the classroom as a site of empowerment and enlightenment, connects it to the courtroom as a site of impactful advocacy, and then suggests that there must be something more especially in these existential times of anti-democratic movements. A new model so to speak.

Conceptualizing how power must move from the classroom and courtroom to the struggle for substantive equality, this Essay posits that neutrality must be rejected in the classroom and pedagogy refocused so that the emphasis is on concurrences and dissents that challenge the democratization of oppression. Further, the courtroom is a stabilizing force, but only the starting point in the struggle for substantive equality. Finally, the structural Constitution must be reimagined so that the legislative, executive, and judicial branches are accountable with real consequences for undermining bedrock constitutional principles.

From the Classroom

The classroom is a site of power at HUSL because our historical legacy resonates. Here, perhaps more than any law school in America, we understand the present-day effects of past discrimination. We understand the irony of history, even in our own institutional birth as a racist president, Andrew Johnson—actively engaged in subverting Reconstruction—signed our University’s charter in 1867.^[11] The power is in the classroom.^[12] I witness this every class session: whether in Constitutional Law or the Critical Race Theory seminar, students are engaged, seeking not only to learn fundamental doctrinal concepts but also to understand how they evolve in the law and in these times. They are learning not only to “think like lawyers,” but to think like public citizens who cherish democratic principles. They are learning that the highest calling of the lawyer as a public citizen is to embrace, preserve, and advocate for the rule of law. It says it on the front corniche of the United States Supreme Court: EQUAL JUSTICE UNDER LAW.

There is something disconcerting in the classroom—constitutional principles are disappearing. I feel like a constitutional used-car salesman hawking doctrinal vehicles that have substantive meaning but faulty doctrinal engines under the hood. It’s like saying, “that used to be the law,” but now it’s changed.^[13] Or “that’s the constitutional principle,” but it’s next on the chopping block. And we navigate the nuances of decisions, concepts, and doctrines with increasing frustration—we know what’s coming, and we are trying to explain it within a rational framework through precedent, stare decisis, the rule of law, and institutional legitimacy. Some constitutional scholars have decided that teaching Constitutional Law is a futile endeavor,^[14] but this cannot be so. We must embrace our own liberation through self-determination.

As law teachers and Constitutional Law scholars, it is our obligation to be constitutional stewards of a post-modern Marbury v. Madison.^[15] We must teach our students not only “what the law is,” but also what the law should be in the preservation of substantive equality.^[16] In Students for Fair Admissions v. Harvard (“SFFA”), the Court overturned over forty years of precedent, concluding that diversity is not a compelling interest and race cannot be considered in college admissions decisions.^[17] An inspiring example of this is Justice Jackson’s stirring dissent in SFFA, which I have termed the first structural inequality dissent in the Court’s history.^[18]

When I teach this decision, I make sure to connect both Justice Sotomayor’s dissent,^[19] which is a comprehensive and expansive reclamation of the anti-subordination principle at the core of the Fourteenth Amendment, and Justice Jackson’s narrative-based structural inequality dissent. In times of retrogression, it is imperative for students to see that the law evolves—this is a long-term struggle for the soul of America and our third attempt at a multi-racial democracy.

To advance this struggle, classroom discourse must be re-imagined by rejecting neutrality and rule-based orthodoxy as guiding tenets in legal instruction. Of course, students must receive a well-grounded education rooted in depth and breadth so that they are prepared to pass the NextGen Bar, but this reimagining of pedagogical purpose is fundamentally distinct; beyond the Black Letter rules, there should be a critique of the law’s role in normalizing subordination.

Seizing the reins of power from the classroom means teaching law so students learn the complexities of structural inequality and how it is advanced through the law. This will empower the student and future lawyer to view the law with appropriate skepticism and to understand how it evolves, ensuring that foundational principles are upheld in our constitutional system. This pedagogical goal has been further impacted by the Court’s aggressive assault on anti-discrimination law, voting rights, and reproductive freedom, and by its expansion of religious freedom, leaving the Establishment Clause’s requirement of state neutrality toward religion (or non-religion) virtually eliminated.^[20] This means not only that our teaching methods must adapt to the constitutional reality of a Court dismantling protections for discrete and insular minorities, but also that the materials we use to teach Constitutional Law must change. There are now Constitutional Law casebooks that foreground the legislative history of constitutional amendments so that students learn the full history and its applicability to current constitutional debates.

For example, whether the Fourteenth Amendment is a color-blind amendment or a race-conscious amendment enacted to dismantle caste-based oppression is an issue that the Court currently addresses with dramatically different viewpoints, from Justice Thomas’ unique brand of post-racial constitutionalism rooted in textualism, originalism, and the Declaration of Independence, to Justices Sotomayor and Jackson’s interpretation of the Fourteenth Amendment with its race-conscious and anti-subordination underpinnings derived from the legislative history of the Reconstruction Amendments. A casebook cannot do all this work, so we must use history, Critical Race Theory, and other materials outside of traditional Constitutional Law to break the doctrinal and canonical barriers within it.

Because the law is a rule-based discipline, there is an analytical predisposition to parse even profoundly wrong decisions for some semblance of rationality as a means of preserving the legitimacy of the rule of law and the interpretive primacy of the Supreme Court. There is a clear jurisprudential brightline between what the law is and is not. SFFA^[21] provides a paradigmatic example of teaching to transgress.^[22] This is an opinion that cannot be taught in class as if nothing is wrong, because this would be a feat of intellectual and pedagogical dishonesty that would rationalize systemic exclusion and structural inequality.^[23] In the classroom, SFFA must be deconstructed with an “oppositional analytic,”^[24] a skeptical review of the majority opinion with an emphasis on how the dissents of Justices Sotomayor and Jackson reaffirm precedent while it is being erased. The dissents give analytical clarity to distorted constitutional reasoning.

SFFA should be taught as a flawed, ill reasoned, and constitutionally illegitimate decision based on the Court’s own affirmative action jurisprudence. In this manner, the law is taught as a pedagogical transgression—“a movement against and beyond boundaries”^[25]—so that the Court’s post-racialism is fully critiqued as disconnected from the reality of race—historically, doctrinally, and practically. Historically, the legislative history of the Fourteenth Amendment establishes that state-mandated subordination is prohibited, but not the positive and limited use of race;^[26] doctrinally, diversity is a compelling interest as established by Supreme Court precedent; and, finally, in reality, the “intergenerational transmission of inequality” perpetuates subordination.^[27] The majority opinion intentionally ignores these propositions, which is a clear indication of the post-racial deception of the Court:

SFFA is the ultimate post-racial deception: it creates a reverse injury, which is the protection of white privilege, based on reading the anti-subordination principle out of the Fourteenth Amendment; it stigmatizes African-American and Latino college, graduate, and professional school students as the unworthy beneficiaries of racial preferences; it foregrounds Justice Thomas as a Black proxy for post-racial formalism; and, all of this is belied by the fact that the opinion’s author, Chief Justice Roberts, is forced to acknowledge the salience of race but only as a convenient afterthought. His duplicity is further evinced in his arms services exception for diversity. This has created disarray, uncertainty, and massive retreat based on the impending threat of further action by conservatives. There have been recent attacks on affirmative action, in light of the Court’s ruling, and this will certainly intensify. This post-racial deception has had a chilling effect across the nation.^[28]

This is the pedagogical template for teaching SFFA, in which each ostensibly neutral aspect of the decision must be critiqued and discarded so that the holding and Black Letter rule of the decision are put into context. This is an acknowledgement that there is a rule, but it is based on the Court’s contrived post-racial constitutionalism. The Court says what the law is by changing what the law means—diversity is no longer a compelling interest because the Court erases it from its jurisprudence. This is why the dissents of Justices Sotomayor and Jackson are so pivotal. They reframe what the law is (returning the Court to its own precedent) and begin the reclamation of the Court’s institutional legitimacy as the final interpreter of the Constitution.

This constitutional reclamation project begins in the classroom. In advancing an oppositional critique of SFFA, students would be asked whether there was a cognizable injury in SFFA. This is a bedrock principle that is at the core of the Court’s Article III power. The Court’s legitimacy is derived from its ability to adjudicate cases and controversies, and the reverse discrimination plaintiffs (white and Asian American applicants) did not have standing in the absence of an injury.^[29] Students would then critique formalistic equality, which holds that the color-blind Constitution forbids any consideration of race. Since discrimination has been officially eradicated, race cannot be used to distribute benefits or burdens.

Formalistic equality is the doctrinal hallmark of the Roberts Court. It acknowledges the existence of societal discrimination, which is a general description of inequality disconnected from the present-day effects of past discrimination, but erects significant proof barriers to establishing it. The discriminatory intent requirement requires more than disproportionate impact; there must be clear, identifiable discrimination by the state. In SFFA, the Court discarded diversity as a compelling interest and concluded that race could be used to avoid a prison riot.^[30]

Another question is whether the anti-subordination principle is embodied in the Fourteenth Amendment^[31]—the legislative history of the Reconstruction Amendments establish that it is. Diversity is a compelling interest because inclusion and substantive equality are essential to the multiracial democracy promised by the Second Founding.^[32] Finally, the inherent doctrinal contradiction in SFFA would be explored. While the decision holds that race cannot be considered in the admissions process, it nevertheless can be considered because race cannot be ignored. The Court cannot erase an applicant’s whole identity by excising race.^[33]

From the classroom, students learn the role of the lawyer. Our profession is the only one exclusively charged with the duty to protect and preserve the rule of law. That is our power. We are essential to the preservation of democracy—we must protect a free, robust, and uninhibited free press;^[34] we must protect the right to assemble and protest,^[35] protect the freedom to believe (or not),^[36] and empower and protect those who simply do their jobs in preserving and observing the rule of law.

While these fundamental rights have not been explicitly overruled, they have been substantively undermined by the expansion of unilateral presidential power and a compliant Congress and Supreme Court. It seems counterintuitive, after discussing how pedagogy must be reinvented, that we move to the courtroom. The courtroom is yet another site of neutrality where the purportedly neutral doctrines and canons learned in the classroom are tools of argument and persuasion. The advocacy model is important and essential, but limited, in these existential times as a tool for transformative social change because it is primarily rooted in the law as it is. This is effective in normal times when the rule of law is respected, but when there is no good faith respect for the rule of law, litigation and advocacy are merely pauses to an expanding imperial executive, a complacent legislative branch, and a judiciary committed to post-racialism. Courtroom advocacy must be re-conceptualized as well.

To the Courtroom

Of course, we need advocacy to preserve the rule of law. But I think that the courtroom is acutely important, not because of some judicial ideology or partisan plan for realignment and exclusion, but because our power must be employed for the survival of democracy. Our fight is one for survival to ensure that our democracy is preserved—the restoration of our constitutional order means that lawyers will be at the forefront for advocating for well-settled principles like the right to have your vote count, to be free to articulate your views without fear of suppression of the content of your speech, and to live in a world without the crushing burden of surveillance and retribution. But this is just a stabilizing measure so that the democratic order is not overturned, the response must be far more robust than this—there must be a claim for the eradication of structural inequality and an assertion of empowerment by the people. Action must meet advocacy.

Seizing the reins of power to the courtroom means that advocacy must not only be specifically tailored to the case at bar but to the far-reaching consequences of precedent and stare decisis. The transgressive teaching project of the classroom must be actualized through connecting courtroom advocacy to movement lawyering. Much of our work as law teachers will be teaching in opposition to distorted norms.

Connecting the Good Trouble pedagogical goals of the law school classroom to the communities directly impacted by structural inequality will create a liberation dialectic based on the expertise of lawyers and the lived experiences of their grassroots collaborative partners in advocacy and action. The clinical classroom is the traditional site of movement lawyering pedagogy, but how traditional doctrine is taught must be framed as the foundation for transformative advocacy. Alexi Freeman and Lindsey Webb state, “[m]any of the skills essential to effective movement lawyering are embedded in legal education, but students often do not recognize their applicability outside of litigation and other legal avenues unless those connections are made clear.”^[37] The classroom connects to the courtroom and beyond. If the classroom is a site of engaged empowerment to disrupt the law that preserves and rationalizes structural inequality, then our teaching should embrace movement lawyering principles to expand how we address inequality.

This can be done by foregrounding the central tenets of movement lawyering^[38] into teaching in the classroom so that advocacy in the courtroom becomes a function of education, freedom, and empowerment. The courtroom is a starting point, a site that must be broadened so that advocacy is not an effort to partially disrupt the status quo for incremental change (or limited progress that will ultimately recede to previous systemic inequality), but a claim for transformative social change.^[39]

Re-imagining Power

But it does not end in the courtroom; that is just the beginning of our struggle. And it goes beyond grassroots movements, protests, and movement lawyering; all of these are essential components of our liberation, but our focus must be on reimagining our democracy. Something is not working if we look at where we are. We relied too much on good faith, American exceptionalism (“it can’t happen here, this is not America”), and rationalizing everything as hyperbole without critically assessing the deceptive allure of neutrality.

We, as lawyers and public citizens, must help America wake up. We can begin by conceptualizing how to rebuild a government with institutional mechanisms that are not merely procedural guardrails but substantive barriers to anti-democratic principles across all three branches of government. We cannot constitutionalize or codify good faith; our recent experience confirms this as the American citizenry continues to wait and hope for a return to American democratic norms. This is the allure of American exceptionalism, flawed though it is. We keep parroting the rhetorical phrase “this is not America,” without acknowledging that this is precisely what America is.

While we cannot constitutionalize good faith, we can institutionalize it by making accountability enforceable through Articles I (the Legislative Branch), II (the Executive Branch), and III (the Judicial Branch) of the Constitution. We must re-imagine the structural Constitution. The foundational principle of the structural Constitution is a system of checks and balances, which works well when there is a shared belief in democratic principles and the rule of law, but in the face of an onslaught of authoritarianism and repression, the Constitution must be strengthened with more substance.

Unleashing power, policy, and the voice of the people in education—Good Trouble—means that the classroom rejects neutrality and that advocacy advances substantive claims and eschews incrementalism. There must be a reclamation of the structural Constitution. While there are limitations on the scope and exercise of power between the three co-equal branches of government, accountability is largely premised on good faith.^[40] We have seen that in the face of a leader who disregards constitutional norms and democratic first principles, there is not much that the Constitution provides as a deterrent other than the politicized process of impeachment.

The checks and balances in the constitutional system must be robust, not merely deferential to the exercise of institutional power. The question, then, is how we reimagine the structural Constitution so that institutional accountability is a substantive and normative principle that stands as a constitutional bulwark against totalitarianism, tyranny, and fascism.

We unleash power and reclaim it through what is learned in the classroom, advocated in the courtroom, and connected to the grassroots and movement lawyering, and then reimagined as a structural Constitution with defined norms of enforceability. There must be a move away from the exclusive reliance on the good-faith enforceability of constitutional norms toward enforceable standards with institutional consequences—the substantive enforcement of the separation of powers.

The impetus for this institutional shift from simple good faith adherence to constitutional norms to substantive enforceable norms is necessitated by the context that we are in. Specifically, “the rise of multiracial democracy has triggered an authoritarian reaction among a partisan minority. And our Constitution is empowering that partisan minority, and that has magnified rather than checked the authoritarian reaction. We are trapped by our institutions.”^[41] The way out of this trap is to empower the electorate to compel legislators to comply with constitutional norms.

Thus, institutional reform should be broad and all encompassing: voting rights should be reaffirmed and protected with the passage of the John Lewis Voting Rights Act (Good Trouble);^[42] the Electoral College should be discarded in favor of direct elections;^[43] and Congress should be empowered to provide legislative responses to the unitary executive theory which is unfolding and eroding our constitutional democracy. Perhaps that power could be vested in the Necessary and Proper Clause of the Constitution which is a broad enumerated power to legislate on behalf of the people—preservation of our multiracial democracy is at the core of this legislative purpose. The general welfare^[44] and well-being of the citizenry is directly related to a fully functioning and inclusive multi-racial democracy. There should be a substantive remedy rooted in institutional accountability for interference with the democratic process.^[45]

If an action of the Article II Executive is extra-constitutional and illegal, the first response should be from Congress exerting its power to halt the illegal action. If presidential action needs congressional approval, the president should not be able to act unilaterally,^[46] and Congress should not acquiesce to the executive’s anti-democratic actions. Neither should the Supreme Court. Thus, any extra-constitutional action should not be legitimized by either the legislative or judicial branch. There should be an institutional stop mechanism that halts presumptively unconstitutional action which must be reviewed by either an appropriate legislative entity or the judicial branch.

Our re-imagining of the structural Constitution does not end here. There must be a check on executive power, especially in this era of anti-democratic authoritarianism, which aggrandizes the executive branch and shrinks the co-equal legislative and judicial branches. At best, the Supreme Court has given conflicting signals of saying what the law is^[47]—a contradiction discussed earlier in this Essay—at worst, the Court has been a willing institutional collaborator advancing the President’s conception of the unitary executive theory.^[48] The Court has failed to preserve our constitutional democracy. It has dismantled the discretionary infrastructure of the administrative state^[49] and anti-discrimination law, both are manifestations of post-racial federalism.^[50]

The Court’s failure underscores the need for institutional accountability. “Courts are an absolutely fundamental institution within any democratic regime . . . . Courts can serve as barricades against democratic erosion, but they can also serve as effective tools in its deconstruction.”^[51] The Court has been less of a barricade and more of a deconstructive tool of democracy, and efforts at reform have been neutral and incrementalist, which is the hallmark of how the American polity views change.^[52] The need for structural Supreme Court reform is especially compelling in the context of the emergence of an authoritarian state. There must be a constitutional stop valve, either in a constitutional amendment or an independent institution with oversight and compliance power, to ensure that the Court does not reify the unitary executive and obliterate separation of powers principles. Certainly, it is paradoxical to advance a theory of oversight authority of the Court of last resort in our constitutional system, but these times call for a structural intervention. The recent discussion about an ethics code for Supreme Court justices confirms this.^[53]

Reconceptualizing accountability will be a complex task because the Court’s stature as the final authority on the Constitution must be balanced with the scope of its power to render judgments which could be viewed as anti-democratic and perpetuating centralized power in the Executive Branch. Good faith, legitimacy, and the rule of law are defining features of our constitutional democracy, but they are presumed rather than enforced.

Final Thoughts: Good Trouble as Power Imperative

This Essay offered some critical observations on the law school classroom as a site of empowerment, rejecting neutrality and the rationalization of hierarchy and oppression through the law. It argued that teaching must be oppositional in facing entrenched doctrine that legitimizes subordination; it highlighted the rhetorical, narrative, and persuasive power of dissents as essential to restoring precedent and evolving law; and it posited a reconceptualization of courtroom advocacy as directly connected to movement lawyering. Building upon these propositions, it advanced the concept of institutional accountability for the Legislative, Executive, and Judicial branches of government.

Good Trouble means disrupting structural inequality and systemic racism and the laws and institutions that perpetuate subordination. The Good Trouble power imperative is a call to unleash the power in our hands through a series of substantive reclamation projects.

A reclamation project to push back against historical revisionism and erasure. An education project that includes deep and critical analysis of legal doctrines that perpetuate the present-day effects of past discrimination and theorizes new approaches to restore the potency of anti-discrimination law. Advancing policy beyond the classroom to the courtroom with advocacy directly connected to grassroots movements (a rejection of neutrality and incrementalism). Although amending the Constitution is an arduous process, reinterpreting it so that it reflects the realities of the 21st century polity and produces substantive safeguards against minority entrenchment, voter suppression, and totalitarianism is imperative. We need to reaffirm the structural Constitution.

Articles I, II, and III of the Constitution should include compliance mechanisms so that separation of powers is more than a good faith institutional prerogative, but a substantive condition of the exercise of co-equal power. There should be constitutional provisions for oversight to prevent the rise of authoritarianism and democratic decay. The Executive branch must exercise power within constitutionally defined limits, and there should be substantive institutional consequences for failure to do so. Anti-unilateralism should be a substantive constitutional principle and guardrail. Notwithstanding its institutional stature as the final appellate authority, the Supreme Court, as a co-equal branch of government, must adhere to ethical standards and institutional norms that protect our democracy, not undermine it through the sophistry of neutrality. To preserve democracy, the Court must protect the rights of the people.

We unleash our power by advancing substantive equality, empowering the voices of the people in education, and embracing Good Trouble to affirm our own self-determination. This symposium centers HUSL’s special place in American legal education, it is the epicenter of social justice lawyering through scholarship, activism, and practice. From the classroom, we train social justice engineers who can critically assess the underpinnings of protest and principle; to the courtroom, we acknowledge how advocacy must be reimagined to include the claims of the people through narratives and movement lawyering as a rejection of incrementalism; and, beyond, we seize, embrace, and unleash our power when we take up John Lewis’ call to engage in Good Trouble which is an affirmation of democratic principles and activism to counter autocracy.