By Mark Kleiman
The memory of Nelson Mandela is being honored for his courageous and deeply dignified stance while imprisoned, and for his astute and successful efforts at reconciliation and nation building when he was finally released in his 70s.
Very few people remember that the man who helped lead a revolution was not always ready to die for his cause. Sixty years ago, Nelson Mandela was a civil rights lawyer in the only African-run law firm in South Africa. He represented victims of police brutality and the overbearing racial authority in his country. The white-run government could not tolerate these challenges and used the apartheid laws to force the firm to move out of downtown Johannesburg and into a remote area. Mandela could not get to the courts, and his clients could not get to him. Unable to practice under these conditions, Mandela and his partner had to close their practice.
Blocked in his efforts at peaceful reform and appalled by the government’s wanton demolition of an all-Black Johannesburg suburb, Mandela took up the path of armed resistance. This was the beginning of an armed struggle that went on for over thirty years, taking tens of thousands of lives. Mandela spent twenty-seven of those years in prison, much of it in solitary confinement.
It is no accident that a smart and determined leader would seek justice under the law. And it is no surprise that after being thwarted at every turn, he sought that justice through other means.
After years as an organizer I went to law school to help get justice in this country. I was confident that unlike South Africa, I lived in a country with a rich history of democratic feistiness and a strong commitment to fair enforcement of the laws. I now wonder if I was wrong.
In the United States we are witnessing an unprecedented attack on legal rights. One courthouse door after another is slammed – on workers, on women, on people of color, and even on everyday consumers. Instead of club-swinging southern sheriffs or snarling lynch mobs, the new weapon of choice is a judicially enforced, secret system of private judging called arbitration. Arbitration strips away Americans’ constitutional right to a jury trial and drops them into the murky world of closed-door judging. It’s a rigged game where one side hires, fires, and pays for the referees. Arbitrators at one top private judging firm ruled for employers and against employees, for big business and against consumers 93.8% of the time. And these decisions are made in secret, instead of an open courtroom.
Time after time the U.S. Supreme Court has twisted federal law to strip away these constitutional rights. It Walmart v Dukes it ruled that over a million women working at Walmart could not band together to sue for sex discrimination that stole wages from them. Rights to equal pay, a safe workplace, and equal treatment have been stripped away by secret tribunals. Now that same Supreme Court, in ATT Mobility v Concepcion, has also ruled that fine print language buried in 30-page user agreements can be used to keep millions consumers from banding together in class action suits or workers from demanding that they be repaid for meal and break time stolen from them.
As we honor Mandela, it bears remembering that his broad vision for his country, and his skills as an orator bring to mind an American leader with those same traits, John Fitzgerald Kennedy. President Kennedy may have had Mandela in mind when he prophetically warned that “those who make peaceful change impossible make violent revolution inevitable.”
The engineers of current attacks on access to justice in America would do well to reflect on JFK’s cautionary words, and on the fiery trajectory of Nelson Mandela. If the life of the man being honored this week proves anything, it proves that without justice, restoring security for America’s working people will require a lot more than lawsuits.