Bernard E. Harcourt | On Cornel West’s “The Role of Law in Progressive Politics”

By Bernard E. Harcourt

It is a privilege to welcome Amna Akbar, Derecka Purnell, and Cornel West to the Columbia Center for Contemporary Critical Thought to revisit and rethink Professor West’s landmark article on the role of law, of the Critical Legal Studies movement, and of radical lawyering in movement politics. Pronounced in March 1990 and published that year, Cornel West’s essay, “The Role of Law in Progressive Politics,” was deeply influential on young radical lawyers and has continued to shape the way we think about rebellious lawyering today.[1]

I say this from experience. Cornel West’s essay was formative for me when I first came across it in the early 1990s. At the time, I was fresh out of law school, steeped in Critical Legal Studies, and had just moved to Montgomery to represent men and women on Alabama’s death row and challenge the systemic forms of racism that hemorrhaged—and still do—from the criminal legal process throughout all of American society. Walking up the creaky flight of stairs to my thimble-sized office, I recall being immediately struck by the line:

“radical lawyers have little option other than defensive work [which] although often demoralizing, serves as an important link to past victories and as a basis for the next wave of radical action.”[2]

At the time, my work did not feel demoralizing—although as the years wore on, the death penalty took its toll. It was more the tension and the critiques from Critical Legal Studies—my own theoretical home—that felt uncomfortable.

Cornel West had put his finger precisely on the conflict so many of us, young lawyers in the field, were struggling with: the disjuncture between the critique of rights from Critical Legal Studies on the theoretico-historical side and the desire to use our legal training to change the world. The tension between critical theory and radical legal practice was jarring. For many of our friends who had gone to law school to create a more just society, it had been entirely demobilizing, worse than just demoralizing.

But Cornel West offered a path forward. Professor West proposed that radical lawyering could serve as a necessary complement to social movements and organizing. He suggested a back-and-forth—almost a dialectical relationship—between movement work and radical lawyering: only bottom-up, grassroots social mobilization could transform society, to be sure, but it had to operate in tandem with progressive legal practice. Radical lawyering was necessary to facilitate and preserve the gains, to prevent conservative backsliding, to instigate even more social movement. Progressive lawyers had a crucial role to play:

  • To facilitate the social movements by litigating and obtaining demonstration permits, by representing arrested organizers and activists in court, by filing class actions to highlight the injustices, by representing the accused;[3]
  • To preserve the gains and prevent backsliding by means of what Cornel West called “defensive work”: using the liberal legal framework of constitutional and civil rights, and the discourse of the rule of law, as a shield and sword against conservative efforts to turn the clock back, thus highlighting the hypocrisy and judicial activism of status quo or “precedent” conservatives;
  • To instigate even more social movement by using the lawyer’s greatest skills—oratory and narration—to both remind everyone of past victories and energize everyone for the next struggle. As Professor West wrote, “Progressive lawyers can become politically engaged narrativists who tell analytically illuminating stories of how the law has impeded or impelled struggles for justice and freedom. Like the best rap artists, progressive lawyers can energize a demoralized citizenry with insights on the historical origins and present causes of social misery. Lawyers can perform this role more easily than others because of their prestige and authority in American society.”[4]

Cornel West tied the defensive work of radical lawyering to the positive task of instigating, fostering, and supporting social movements. This was, to me, inspiring. It put into words my own experience, or at least my aspiration: to use “the defensive work of progressive lawyers to help lay the groundwork for the next upsurge of social motion and movements.”[5]

That was precisely what had brought me down to Alabama to accompany Bryan Stevenson to open that little law office at 114 North Hull Street, a stone’s throw from Dexter Avenue Baptist Church and, next to it, the Alabama Supreme Court building, both in the shadow of the state Capitol on top of which flew, at the time, the battle flag of the Confederacy. That combination—that dialectical relationship between radical lawyering and movement organizing—was what sent me down into the courtrooms of Pike County and Mobile, the law offices in Selma and Dothan, the prisons at Holman and West Jefferson, the churches in Montgomery and Chambers County, the community centers and many gatherings in homes from Monroeville to Muscle Shoals.

Cornel West captured perfectly the historico-theoretical framework that could structure our death penalty practice. Plus, Professor West had managed to tame the overly nihilistic or pessimistic strains of critical legal thinking—what he called the “myopic spillover” that happens when critique undermines the beneficial work that radical lawyers in the courtroom can contribute to social transformation. I had witnessed and lived through some of those pessimistic excesses. I recall once being so shocked when one of my closest friends and mentors, a towering figure in CLS, told me that they hadn’t voted because it was raining. Perhaps that was just the excess residue of legal indeterminacy and the critique of rights; there was so much other work in CLS that encouraged activism and organizing.

But, as Cornel West identified so well in his 1990 article, there was this constant friction whenever a critical thinker used the discourse of rights, the language of liberalism, or the courts themselves. The critical legal theory stuck like molasses and gummed up the radical lawyering. I’d been steeped in it since my 1L year in law school, 1986-1987, when I’d landed—thank god—in the CLS “experimental section,” with Frank Michelman teaching me property, Martha Minow civil procedure, and Clare Dalton as my year-long contracts professor. That was the very same year that Clare Dalton was denied tenure because of her CLS affiliation and that the law school broke out into what David Trubek called “the Beirut of legal education.”[6] Reportedly, it was my 1L torts professor who wrote the scathing multi-page legal memorandum to the law faculty, with copious and detailed footnotes, that tried to impeach Clare Dalton’s scholarship—at least, that was what I recall hearing at the time.

Mine was the experimental section, in which our extraordinary professors coordinated their teaching and where, for a full week, all our professors taught us in the same lecture hall in order to show the interconnectedness of the law and the way in which it shaped the social order—a brilliant week replete with lectures on legal theory by Duncan Kennedy and on legal history and American Legal Realism by Terry Fisher. That year, Derrick Bell skipped commencement and instead held a sit-in in his office for four days to protest the tenure denials.[7]

The CLS critique of rights and the controversies surrounding Clare Dalton had mobilized me, but left me conflicted over the role of progressive lawyering. I wasn’t sure what to do. I was torn between critical legal theory and my student lawyering in the Prison Legal Assistance Project. My second year, I threw myself into the Legal Aid Bureau where I began representing clients passionately, protecting them from eviction, trying to deal with their government benefits, helping them with family matters. It was exhilarating and all consuming. I spent late nights in the dark basement of the Gannett House preparing litigation, doing trial prep, trying to organize a class suit agains the housing authority. I remember trying an eviction case in Middlesex Superior Court with my friend and LAB partner Bill Sarraille, under the supervision of attorney Paul Collier, and ending up with a judgment against the landlord. It felt like just what I could hope for with progressive law. It was during that time that I became passionate about criminal defense work as well, first working with Max Stern and Margaret Burnham in Boston and eventually Steve Bright and Bryan Stevenson down in Atlanta at the Southern Prisoners’ Defense Committee. It was there that I saw how defensive legal action could be combined with movement work, as I accompanied Bryan and Steve to churches and community centers to galvanize people to oppose prosecutors seeking the death penalty and to help communities fight against racial oppression. Critical Race Theory was emerging at the time, productively putting at the fore issues of race and anti-Blackness. (Several of our current colleagues at Columbia Law School, who might join us, Kimberlé Crenshaw and Kendall Thomas, were and remain at the forefront of CRT).

It was precisely that conjunction of, in Cornel West’s terms, the “defensive” legal action and the “movement” work that inspired me and brought me to Montgomery. Professor West writes inspiringly about Martin Luther King, Jr. in this context, and how important King’s moral vision was to the “interplay between the work of progressive lawyers and social change.”[8] Here too, I could not agree more. King’s writings and his vision were my loadstar at the time—alongside Malcolm X’s speeches. I would sit in Ebenezer Baptist Church in Atlanta and Dexter Avenue Baptist Church in Montgomery reading King’s sermons to myself. My bible at the time was this thick black book called A Testament of Hope.[9] Today, the pages are yellow. It was not printed on archival paper. As I flip through it still today, looking for a sermon to read with my Abolition Practicum students on our trip to Dexter Church with Alexis Hoag on November 10, 2019, I come across all my hand-written inscriptions—all the places that I read King to keep myself going, especially when the death penalty litigation was tough. I read King’s brilliant “A Drum Major Instinct,” perhaps my favorite of his sermons, at Ebenezer Baptist Church on January 7, 1989—the first time I had gotten to Atlanta to work at the Southern Prisoner’s Defense Committee with Bryan, Steve, Ruth Friedman, and Clive Stafford-Smith. I read King’s “I Have a Dream” speech in my home at 10 Florida Street in Montgomery on January 3, 1992, with my partner Mia, it says. And decades later, in the nave of Riverside Church in New York City in 2018, we read “A Time to Break Silence” with the brilliant Brandon Terry and my Uprising 13/13 students. Cornel West’s essay brought this all together for me in the most beautiful and inspiring way. Professor West would express it all so powerfully a couple of years later when his book Race Matters came out, which for me remains a classic.

Over the years, the effort to combine critical theory (writ large) with defensive/mobilizing legal praxis became my obsession. But it felt like, and still feels to me that the constant friction between critical theory and legal praxis continued to have untoward consequences. It produced feelings of alienation, and some incriminations. At times, rather than propel social movement, I feel, it undermined the collective work.

For those who consider themselves progressive courtroom lawyers seeking radical social transformation, there was a kind of defensiveness that made us feel somewhat isolated or alienated, caught in a different milieu—swimming alongside those who actually believed in the rule of law and liberal legalism. Even though we might work hand-in-hand with, and admire, and respect the more established progressive legal organizations, they often felt too wedded to that rhetoric of rights, too confident in the rule of law—too concerned with their reputation, too close to the political establishment. For those of us committed both to critical theory and social transformation, that milieu, that language, those circles remained somewhat alienating. And so many of us who tried to merge theory and practice found ourselves alone, calling for cooperation.

I sensed this, and still do, from other brilliant justice lawyers who I have had the privilege of working with. In some of my conversations Alexis Hoag-Fordjour, who was at the NAACP Legal Defense Fund before coming to work with us at the Initiative for a Just Society at Columbia, and Omavi Shukur, my current colleague at the IJS who also came from LDF, I still feel a slight sense of isolation that comes, perhaps, from the subject-position of being a radical abolitionist litigator, not just abolitionist of the death penalty, but of the prison, police, and prison industrial complex (“PIC”). There are few institutional places to do that comfortably, it seems. Most of the more established progressive legal organizations do not want to present as radical abolitionist, or do not think they can afford to because of their fundraising needs.

Many legally-trained, practicing abolitionists today eschew the courts and legal practice, and immerse themselves instead in social organizing and movement work. My other extraordinary colleague at the IJS, Derecka Purnell, author of Becoming Abolitionists,[10] is perhaps one of the most interesting contemporary lawyers, trained as a lawyer, who is an abolitionist movement activist and organizer and theorist. I will have to ask Derecka about this at the seminar, but I have this sense that she is somewhat disillusioned about the courts and litigation practice. Of course, this makes entire sense today, given the conservative judicial climate in which we live. The limited prospect of success in court has gotten drastically worse, especially given the United States Supreme Court’s alt-right pivot. The conservative turn in the 1970s, accentuated during the Rehnquist Court, was ominous; but what we face now, with the three Trump appointees, is even more extreme. The previously low likelihood of success in federal court is now almost inexistent. In the death penalty context, the Supreme Court has been lifting stays of execution with abandon. The supermajority conservative wing of the Supreme Court has become “the nation’s executioners.”

Many scholars have been thinking about these problems. Amna Akbar, whose work I have admired since she began writing, has written powerfully about the way in which law teaching and movement work tend to be divorced in the mainstream law school context, and argues that we need to bring them into conversation.[11] Her work is some of the most important work at both a theoretical and movement level. Akbar calls for what she has coined “Movement law,” a new approach to legal scholarship, which I hope she will present and discuss in our seminar.

But there still is this tension today when it comes to radical lawyers in the courtroom. Still now, thirty-three years after the publication of Cornel West’s landmark article, there remains friction. Cornel West’s proposed overcoming—the Westian resolution—remains a work in progress.

I wonder if—and this is only a hypothesis—the residual tension is the product, in part, of the continued (and judicious, I believe) privileging of social movement work over lawyering praxis. There remains, even in the Westian resolution, a trace of hierarchy: legal work may be indispensable, but not sufficient; social movement work is ultimately the most important force for social change; radical lawyers preserve and prevent backlash. Maybe in the presentation of the Westian resolution, there was not enough emphasis on the third task: instigating and fostering social movement. Maybe that third task needed to be named better, so that the “defensive” posture of the radical lawyer didn’t overshadow what we might call the “offensive” tasks of activating and fueling social movement. Perhaps it was just a question of emphasis and of naming—naming, which is often our most important task as critical thinkers. “With the way people usually are,” Nietzsche reminds us in The Gay Science, “it takes a name to make something visible at all.” Perhaps we just needed to name better the third function of rebellious lawyering: “offensive,” or “attack,” or “leaderful.” I usually avoid sports analogies, but in the wake of the 2022 World Cup and in homage to Mbappé and Messi, we might call it the “striker” function of radical legal praxis.

Of course, for those who share what King called “the drum major instinct,” questions of hierarchy or privilege should not be an impediment. The drum major instinct, as King explained, is only good “if you use it right.” “Don’t give it up,” King said. “Keep feeling the need for being first. But I want you to be first in love. I want you to be first in moral excellence. I want you to be first in generosity.” We should strive, as King suggested, to be the right kind of drum major: to visit those who are in prison; to try to love and serve humanity; to try to be right on the war question:

Yes, if you want to say that I was a drum major, say that I was a drum major for justice. Say that I was a drum major for peace. I was a drum major for righteousness. And all of the other shallow things will not matter. … I just want to be there in love and in justice and in truth and in commitment to others, so that we can make of this old world a new world.[12]

In the end, there is still a lot of work to be done to harmonize the defensive role of progressive lawyers and the striker tasks of radical lawyering with movement work and organizing and with critical legal theory. This ambition, these efforts call for cooperation among all of us. As we move forward, I for one take great inspiration from Cornel West’s formative 1990 essay and, also, from my brilliant former students who are now public defenders in courtrooms around the country—role models like Colin Henderson at the Colorado Public Defenders; Max Kampfner at the New York State Defenders Association; Robin Price at the Federal Defenders in Birmingham, Alabama; Ashwini Velchamy at the Capital Appeals Project; Hannah Rosner at NDS Family Defense; Natalie Behr at the Colorado State Public Defender; Claire Postman also at the Colorado State Public Defender; Eliot Spector at the Public Defender of North Carolina Buncombe County; Ashley Taylor at New York Legal Aid; [friends, write to me and tell me where you are now!]; my own daughter, Isadora, who is a public defender trial attorney at the New York County Defender Services in Manhattan; and my son, Léonard, who is a climate justice and urban planner.

I watch with admiration and love as they go to court and transform the world.

I only hope that our work together at this seminar will help provide the support, framework, and resources to allow rebellious lawyers in courtrooms around the country to instigate, to foster, and also to feel integrated in the ongoing social movements and vital struggles for a just society.

Welcome to Utopia 8/13!


[1] Cornel West, “The Role of Law in Progressive Politics,” Vanderbilt Law Review, Volume 43, Issue 6, 1797-1806 (1990) (delivered in the Symposium on “Law, Literature, and Social Change” held at Vanderbilt University School of Law and the Robert Penn Warren Center for the Humanities at Vanderbilt University on March 16 and 17, 1990).

[2] West, “The Role of Law in Progressive Politics,” 1800.

[3] West, “The Role of Law in Progressive Politics,” 1799.

[4] West, “The Role of Law in Progressive Politics,” 1802.

[5] West, “The Role of Law in Progressive Politics,” 1804.

[6] Jennifer A. Kingson, “Harvard Tenure Battle Puts ‘Critical Legal Studies’ On Trial,” New York Times, August 30, 1987,

[7] Kingson, “Harvard Tenure Battle Puts ‘Critical Legal Studies’ On Trial.”

[8] West, “The Role of Law in Progressive Politics,” 1804.

[9] Martin Luther King, Jr., A Testament of Hope: The Essential Writings and Speeches, ed. James M. Washington (New York: HarperCollins).

[10] Derecka Purnell, Becoming Abolitionists (New York: Astra, 2021).

[11] Amna A. Akbar, Sameer M. Ashar, and Jocelyn Simonson, “Movement Law,” 73 Stan. L. Rev. (2021).

[12] Available on-line here: