Introduction

The above quote is from an interview with Tyree Scott—African American ex‐Marine, workers’ rights leader in Seattle, and one of the most extraordinary grassroots activist leaders we have ever encountered. Scott recounted for us a period from 1970 through the mid‐1980s when “the law was good” for workplace civil rights activists in locally‐based social movements around the nation. The good law he identified sprang from the expansive “disparate impact” standards developed by federal judges as they began to interpret Title VII in the 1964 Civil Rights Act. As Scott saw it, the court majority in Griggs v. Duke Power (1971) and subsequent rulings provided critical resources for a wide array of transformative legal mobilization campaigns by minority race and female workers in the United States for nearly two decades.

In the early 1970s and 1980s, Scott collaborated with a group of young Filipino American activists who were, among other things, organizing to reform workplace conditions in the Alaskan salmon canning industry. As one part of a multipronged reform campaign, the cannery workers filed three antidiscrimination lawsuits against cannery companies in 1974. The activists won at trial and then settled favorably in two of the cases, but the third was less successful. After dragging out for over fifteen years, a surprise intervention by the US Supreme Court resulted in the landmark ruling in Wards Cove Packing Co. v. Atonio (1989). That case was one of a series of rulings in the late 1980s in which the Supreme Court narrowed disparate impact doctrine. The Court introduced new evidentiary requirements that made it much more difficult for workers and activists to deploy antidiscrimination law as a resource for collective political mobilization.Footnote ¹ Although the Court majority in Wards Cove downplayed any departure from precedent, experienced organizers like Tyree Scott immediately recognized that the 5–4 ruling by the Court signaled the “death throe” for the good law that had, since the early 1970s, empowered many worker organizations to use civil rights law as they challenged institutionalized racism and tried to advance workplace justice.

In this article, we use the cannery workers’ historical experience as a rich empirical case study for exploring some general theoretical questions about how social movement organizations use law in struggles for social change. More specifically, we explain how legal scholar Robert Cover's (Reference Cover1983, Reference Cover1986) classic arguments about jurisgenesis and jurispathy can supplement and enhance the classic legal mobilization framework used by sociolegal scholars who study law and social movements (see McCann Reference McCann1994). We show how Cover's concept of jurisgenesis can deepen the legal mobilization framework's understanding of activists’ engagement of law by directing attention to the foundational normative universe, or nomos, that inspired activists’ bottom‐up strategies for advancing social rights and political transformation.

We also show how Cover's conception of jurispathy can enrich the legal mobilization account of the damage done by some judicial rulings. In particular, we note that the Supreme Court's destruction of promising civil rights law was expressed in Wards Cove as a series of curiously abstract arguments that erased legal precedents, relevant social facts, and the plaintiffs’ documented history of institutional racism in and beyond salmon canneries. Indeed, Tyree Scott's lament about the judicially inflicted death throe to civil rights law clearly invites a Coverian sensitivity to systematic jurispathic “killing” that challenges the optimistic faith in courts displayed by much legal mobilization analysis. Finally, we use the cannery workers’ story to draw attention to some limitations of Cover's account by highlighting important dimensions of extrajudicial political engagement that were essential components of the cannery workers’ activist campaign. The need to situate litigation campaigns in the context of concurrent political struggles outside the courtroom is central to the legal mobilization approach, but such struggles are notably absent from Cover's judge‐centered account.

Two interrelated aims animate this article. The primary goal is to build a theoretical bridge between Cover's provocative arguments about law and the analytical tradition of social‐scientific scholarship about the politics of legal mobilization. Our second goal is to illustrate this hybrid framework with an empirical case study of the backstory of the Wards Cove case, a story of little‐known and relatively powerless worker‐activists who struggled to realize the early promise of the Civil Rights Act of 1964 in the face of a growing backlash by big business and a related rightward shift among both elected officials and judges.

Toward a Hybrid Bottom‐Up Analytical Framework

We begin by noting both the similarities and differences between legal mobilization studies and Cover's basic framework. Legal mobilization scholarship emerged as an alternative to conventional, positivistic accounts of how, why, and to what effect individuals and groups claim legal entitlements and, in varying degrees, engage with official legal actors and institutions. Those conventional accounts typically assess litigation processes by reducing them to demonstrable linear causal effects of judicial decisions on social and state actors (see Rosenberg Reference Rosenberg1991; McCann Reference McCann1994). Legal mobilization scholars instead have offered a sociolegal framework that conceptualizes law more complexly as indeterminate, pluralistic, contested cultural norms embedded in society and the state alike. The language, logics, and threats of law permeate people's understandings of social life and shared obligations, making law and its impact inseparable from the symbols and rituals of legitimation that accompany its pronouncements (Brigham Reference Brigham1996). Legal mobilization scholarship thus developed as an analytic framework that focuses on law as a practical discourse that structures social relations and shapes the knowledge, understandings, aspirations, and strategic gambits of legal “users” or claimants (Scheingold Reference Scheingold1974; Nader Reference Nader1984−1985 Burstein Reference Burstein1991; McCann Reference McCann1994; Albiston Reference Albiston2010; Paris Reference Paris2010; Lovell Reference Lovell2012).

In this constructivist approach, formal pronouncements by authoritative decision makers, like judges, matter as much through their indirect, “radiating” effects on citizens’ perceptions of actionable risks, opportunities, possibilities, and strategic resources as through enforceable commands (Galanter Reference Galanter, Boyum and Mather1983). Although many early classics of this field focused on legal mobilization among individuals (see Zemans Reference Zemans1983; Merry Reference Merry1990), there are a growing number of studies focusing on organized groups that deploy law as an institutional and ideational resource for struggles aiming for broader policy changes or structural transformations in institutionalized power relations (McCann Reference McCann1994; Paris Reference Paris2010; Chua Reference Chua2014).

Cover similarly focused on the processes by which official legal actors constructed and enforced authoritative meaning from broad, indeterminate, often contested official norms and texts.Footnote ² However, Cover's interest was primarily in theoretical questions about how legal meaning is created in diverse and divided societies, rather than in questions of how, why, and how effectively individuals or groups mobilize legal resources for strategic action. He theorized legal meaning as developing not just through authoritative pronouncements of federal judges about official legal texts, but also through the narratives that different subnational communities construct over time to render sensible shared histories, experiences, and aspirations. Such informal meaning systems often are constitutive of community life in quasi‐independent social spaces within the national legal system, but they also sometimes are mobilized to challenge or to change official law.

The inevitable development of different narratives among groups with different experiences means that legal meaning in any society is necessarily pluralistic. Judges are not able to monopolize legal meaning through their official pronouncements because people in different communities develop and sometimes enact competing visions of law and different commitments to the precepts of legal governance. Cover used the term nomos to describe the normative world of principles and narratives that shapes and expresses a group's life in society; he coined the term jurisgenesis to describe the process by which various communities develop the distinctive narratives of law that express their underlying nomoi. Cover exhorted legal scholars to take these many rival community nomoi and narratives as seriously as official law. To understand how law is created and made meaningful, Cover urged scholars to look beyond state institutions, and especially beyond judges, to “the multiplicity of the legal meanings created out of the exiled narratives and the divergent social bases for their use” (1983, 19).

Perhaps Cover's most important contribution was to emphasize the role of judicial authorities in selecting among competing normative visions those claims that prevail as official law and thus are enforced by state violence. Cover wrote his key works on law and violence in response to scholars who argued that technical standards of interpretation and/or well‐designed institutional hierarchies could justify judicial authority as a mechanism for producing societal consensus on necessary social norms (see Snyder Reference Snyder1999; Post Reference Post2005). Cover's insistence that legal meaning is inevitably plural challenged scholars who privileged judicial pronouncements and saw judging as an effort to find universally shared understandings of official texts. Scholars who imagined judicial interpretation as an idealized search for consensus obscured the ways that the omnipresent threat of state coercion backs judicial authority. In contrast, Cover emphasized that judicial authority is maintained by the state's “imperfect monopoly over the domain of violence” when judges seek to enforce established norms and narratives against the rival visions that inevitably develop among other communities (1983, 52).

Cover's insight about law's routine dependence on violence calls into question familiar assumptions that judicial interpretations are necessarily more authoritative and/or morally superior to alternatives that emerge from below. Cover did concede that the organized violence “triggered” by judges’ words can be justified, particularly if the alternative is a more overtly violent form of intergroup warfare and destruction. However, such practical justifications of official violence provide no reason to think that judges will develop the most compelling aspirational legal visions or the best answers to particular interpretive questions. On the contrary, the primary work of judges is not embracing novel legal claims or declaring the best version of law, but the cold, bureaucratic role of advancing effective social control (see also Shapiro Reference Shapiro1986). To do that work effectively, judges have to kill off the alternative visions of law and justice that bubble up from below to challenge legal tradition. As Cover writes: “Judges are people of violence. Because of the violence they command, judges characteristically do not create law, but kill it. Theirs is the jurispathic office. Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy the rest” (Cover Reference Cover1983, 53).

Cover's point was not that unofficial visions of law were necessarily better than judicial visions. He instead wanted to disrupt the scholarly practice of routinely privileging judicial pronouncements while treating any bottom‐up alternatives as irrelevant mistakes. Cover also acknowledged that judges do occasionally side with novel, mildly reformist articulations of justice that challenge entrenched power. Yet he also observed that the habitual judicial posture is to exaggerate the certainty of rulings in order to delegitimize and thus silence alternative views. He noted that judges are often uncomfortable with their jurispathic role, and thus take refuge in jurisdictional claims and abstract principles, which in turn makes them likely to defer to the administrative state machine and the necessity for imperial “social control” (1983, 17). This happens, as Cover showed in a later book on antislavery judges, even if it leads judges to violate their own deeply held personal moral commitments (Cover Reference Cover1984).

Cover thus parallels legal mobilization scholars in recognizing the unsettled cultural authority of official law and insisting on the value of bottom‐up study of “the law evolved by social movements and communities” (Cover Reference Cover1983, 68). His distinctive contribution is to insist that scholars should not assume the primacy of some universally shared legal culture; rather, they should take seriously the ways that common legal symbols take on different meanings among different communities within a single national polity. Yet Cover developed these insights at a fairly abstract level of theorization and focused largely on formal legal texts like amicus briefs and judicial opinions. Unlike legal mobilization scholars, he did not attempt an empirical inquiry into how movements develop through encounters with law, the impact of such encounters on the people involved, and the ways movements or communities integrate legal action with other forms of struggle.

Nevertheless, Cover's insights about the development of legal meaning within communities and movements illuminate some important new directions for empirical scholars of social movement legal mobilization practices. First, Cover's account suggests that scholars seeking to identify the motivating ideals and aims of movement actors need to expand the temporal scope of their inquiries. In particular, scholars need to consider how people's understandings of legal norms are connected to their identities as members of smaller communities within larger societies. Inquiries thus need to probe further back in time to appreciate how communal nomoi and narratives develop over many years and across generations. Just as Engel and Munger (Reference Engel and Munger2003) took seriously the lifelong development of legal consciousness for many individuals with disabilities, so does Cover's analysis invite investigations into the long historical development of social group experience, frames of reference, and aspirational visions.

Second, Cover's account of judges and jurispathic actors invites a better positioning for scholars trying to analyze or evaluate activist engagement with law. In particular, scholars need to assess activists’ efforts to mobilize law from the perspective of those activists, and in light of the underlying vision of law that they develop out of their collective normative commitments. Activist invocations of law deserve to be taken seriously as legitimately grounded interpretations of law. Such an approach is essential for evaluating mobilization efforts because jurispathic judges often attempt to legitimate their chosen positions through exaggerated dismissals of alternative visions that bubble up from below. Those dismissals can distort subsequent understandings of what activists were expecting and trying to accomplish when they turned to law.

Cover's metaphor of killing captures judges’ efforts not just to establish new legal standards, but also to destroy and erase the legal foundations of alternative views. We argue that the jurispathic erasures of alternative legal visions in the Wards Cove ruling have helped erase from historical memory the way earlier precedents facilitated collective political mobilization.Footnote ³ Because those precedents were largely ignored in the Supreme Court's ruling, later judges, lawyers, and legal scholars who privilege judicial rulings as legitimate law have seen the arguments of the losing side as mistaken, and thus normatively irrelevant efforts to invent new law. In exhorting scholars to excavate and take seriously the legal visions that judges erase, Cover invites a more thorough “decentering” of official law than legal mobilization scholars often deliver in practice.

Third, Cover's account of underlying nomoi grounded in communal narratives helps explain why alternative normative commitments survive judicial attempts at delegitimization. Jurispathic rulings kill off alternative interpretations by denying them status as official law, but judges are less able to kill an underlying nomos that develops across generations of social interaction and narrative construction. Official law always speaks its own insistent dialect of normativity, but legal meaning develops in communities from a different and equally resilient array of ideational resources. Cover's approach thus helps explain why empirical sociolegal scholars have so often found that ordinary people's understandings of law are more fragmented and resistant than expected by earlier critical scholars, who worried that the totalizing effects of legal ideology narrowed the political aspirations of movements that adopted litigation strategies (see McCann Reference McCann1994; Lovell Reference Lovell2012).

As Cover points out, the normative pronouncements that judges use to justify jurispathic rulings are aimed less to convince the losers of the state's official rightness than to comfort the winners and affirm the practical need for a designated state authority to resolve ongoing legal discord (1983, 54; 1986, 1608, 1611). Observers with strong professional commitments to law, including scholars whose understandings of activist litigation are based solely on reading appellate court opinions, may be taken in by judges’ pretensions to legitimacy, but activists involved in broader organizing and political work develop commitments that provide more immunity to official legal ideology. The persistence of those broader normative commitments also means that claims emanating from alternative visions may surface again in new forms to challenge the official legal order, forcing judges again to make choices about where to grant legitimacy. Thus, legal “killing” fits easily with social movement groundings of legal mobilization theory that recognize the long life of many rights claims and legal visions (Melucci Reference Melucci1989; Tarrow Reference Tarrow and Traugott1995).

Cover's enriched account of legal meaning as grounded in shared nomoi and narratives thus illuminates new directions for legal mobilization scholarship. Moreover, his clear‐eyed, realistic characterization of judges as agents of state coercion and social control represents a potentially important transformative contribution. Indeed, his insistence on recognizing the routine jurispathic role of courts provides a marked counter to the uncritical faith in official law, courts, and litigation as resources or even allies for social justice that animates many studies of legal mobilization, especially in the United States (Brisbin Reference Brisbin2002; Lovell and McCann Reference Lovell, McCann, Wolbrecht and Hero2004). At the same time, however, what is missing from Cover's account, and what legal mobilization scholarship provides, is an emphasis on the important extrajudicial dimensions of political engagement over law and rights. Cover largely identified jurisgenesis with plaintiff litigation and jurispathy with judges, paying little attention to the ways that broader political forces enable and constrain judicial interpretation, or to the ways that groups develop and pursue interpretive commitments to law in nonjudicial arenas. In contrast, many legal mobilization scholars have worked to show how law‐related movement activity fits into broader political struggles, including various forms of organizing for strategic advocacy of rights by social movements in diverse forums of social interaction and state authority outside of courts. Such activity includes both conventional and nonconventional, extrainstitutional forms of “contentious politics” (Tilly and Tarrow Reference Tilly and Tarrow2006).

Since its origins, legal mobilization scholarship has been interested in rights claiming as social practice, meaning that it that may or may not include formal claims in court, much less proceeding to trial, judgment, and reported appellate court opinion (Zemans Reference Zemans1983; Scheingold Reference Scheingold1974). Hence, for example, McCann's (Reference McCann1994) study of legal mobilization devotes more attention to internal movement building, policy advocacy through protests, media tactics, collective bargaining, bureaucratic implementation struggles, and the like than to what happened in associated courtroom proceedings. The key assumption animating such study is that, as Cover argues, novel group narratives largely develop through practical interaction within society, most often apart from contact with courts (Polletta Reference Polletta2000). Thus, a hybrid legal mobilization account should go well beyond Cover in focusing empirical study on the multiple sites, contextual factors, and power relations beyond courts that shape and express those struggles over legal meaning.

Cover's account of judges as jurispathic actors likewise links them too simplistically to the policy agendas and interests of a unified bureaucratic state machine (see Post Reference Post2005). As such, he tends to ignore the often complex ways that courts negotiate partisan and other divisions among state elites as well as routine deference to dominant social groups. Political scientists have developed a variety of analytical approaches for identifying and explaining the ways that judges at once influence and are influenced by other state actors, signaling a more multifaceted, variable relationship to shifting coalitions than Cover recognizes (see Graber Reference Graber1993; Clayton and Gillman Reference Clayton and Gillman1999; Lovell Reference Lovell2003; Keck Reference Keck2009; Crowe Reference Crowe2012). More broadly, Cover's indifference to macro politics precludes attention to the ways that official law in most contexts has historically expressed and enforced the interests and ideas of most powerful social actors, including especially dominant economic interests (Lovell and McCann Reference Lovell, McCann, Wolbrecht and Hero2004). Again, inquiry into the latter topic is an important, if often understated, focus of much legal mobilization analysis. While we find great value in Cover's concepts for legal mobilization analysis, we argue for merging his core concerns with broader inquiries into instrumental, institutional, and ideological politics that are the hallmark of legal mobilization scholarship.

The remainder of this article sketches an account of the activist campaign that led to the Wards Cove case in order to illustrate the value of a hybrid analytical approach that joins Cover's framework to social scientific traditions of contextualized legal mobilization study. Consistent with both “bottom‐up” approaches, our empirical effort aims to illuminate both the little‐known aspirational nomos behind the plaintiff's claims and the impact of the Supreme Court ruling that eviscerated US civil rights law as a resource for challenging structural inequalities. We focus first on jurisgenesis initiated by some overlapping communities of racial minorities in the Pacific Northwest. We then turn to the Supreme Court's jurispathic ruling in Wards Cove and the broader political context that supported it. Both parts reveal some important ways in which following Cover's attention to nomos and narrative can enrich legal mobilization analysis.Footnote ⁴

The Genesis of a Radical Egalitarian Nomos

One potential contribution of Cover's theorizing is to press legal mobilization analysts to explore and document more thoroughly the historical development of alternative nomoi that undergird challenges to official law by subcommunities and social movements. While a full accounting is impossible in this article, we at least sketch briefly the key components of that nomos developed among Filipino cannery workers over more than a century of practical struggles against what they considered state and capitalist oppression leading up to the Wards Cove lawsuit in the 1970s.Footnote ⁵

The relevant starting point is in the late nineteenth‐century experience of Filipinos with Western colonial domination. Shortly after supporting Filipino independence forces against Spanish colonial rule, the US military invaded the Philippines, brutally killed an estimated 1 million Filipino resisters, incarcerated large parts of the civilian population in concentration camps, allied with elements of the national and local ruling elites, and embarked on imposing a new constitutional order that secured authoritarian executive rule for most of the next century (Kramer Reference Kramer2006). A radical resistance movement committed to Philippine independence (the Katipunan) continued to generate bloody conflict and to nurture narratives of democratic revolution among many sectors of the lower class, peasants, and minority ethnic groups (e.g., Moros) for many decades to come (San Juan Reference San Juan2009). At the same time, many ordinary Filipinos were subjected to English‐language education that portrayed a benign view of US history and assured them that they had basic rights as Filipino American nationals. This status opened opportunities for Filipino emigrants to take low‐wage work in the agricultural fields and salmon canneries of the US West Coast after Congress blocked further entry of Japanese and Chinese workers. By the 1930s, a substantial diaspora of Filipino male workers thus was concentrated on the mainland, following harvest schedules from California to Washington and short, hectic summers in Alaska (Friday Reference Friday1994; Fujita‐Rony Reference Fujita‐Rony2003).

Filipino workers were promised rights and economic opportunity, but their actual experience was dominated by rampant racial discrimination and class oppression. Local laws at various times restricted property ownership, racial intermarriage, and political rights to Filipinos, while harassment by criminal justice officials and white citizens was common; migrant Filipino workers were routinely excluded from participation in white society and beaten, shot, or killed by both law enforcement officials and white civilians. Author, essayist, and journalist Carlos Bulosan chronicled the exploited conditions of migrant Filipinos in his classic America Is in the Heart. “I feel that I am an exile in America. … I feel like a criminal running away from a crime I did not commit. And this crime is that I am a Filipino in America” (Bulosan Reference Bulosan1996, vii). Bulosan vividly documented the duality of an America where a large and diverse underclass suffered from severe racial and class domination despite promises of legal equality. “America is not a land of one race or one class of men. We are all Americans that have toiled and suffered and known oppression and defeat, from the first Indian that offered peace to the last Filipino pea pickers. … America is also the nameless foreigner, the homeless refugee, the hungry boy begging for a job and the black body dangling from a tree” (Bulosan Reference Bulosan1996, xxiv).

One site of this exploitation that Bulosan knew well was the Alaskan salmon canneries. Beginning in the late nineteenth century, the canneries relied on a plantation model of mass production adopted from operations in US colonies and US‐owned subsidiaries in the Pacific Rim and Caribbean, a model itself adapted from slave‐based agricultural production in the US South (Fujita‐Rony Reference Fujita‐Rony2003). The most striking feature of workplace organization was the segregated structure of the workplace. Successive waves of Asian male workers and a small number of indigenous peoples of the far Northwest performed dangerous work in the least desirable and lowest paid jobs on the production line, including the work of “sliming,” “sluicing,” and “lye washing” the fish (Chew Reference Chew2012). There was little mobility between the jobs performed by minority workers and higher‐paying skilled and administrative positions, which were filled almost exclusively by whites.

The different treatment faced by the minority workers extended well beyond wages. Workers in the remote canneries lived in segregated, corporate‐supplied housing, with the minority workers assigned to cramped, poorly insulated bunkhouses that were unmistakably inferior to the housing provided for white workers. Minority workers complained of substandard, unsanitary food in segregated mess halls and inadequate medical care for frequent illnesses and injuries. As one “Alaskero” summarized about the early era, “conditions in Alaska at that time was so awful. That is just like they were slaves. … They go there and get money from the contractor so they can go to Alaska and work. And, then, they come back, they are broke” (Marquardt Reference Marquardt1992, 4).

Conditions improved in the late 1930s after Filipino workers organized a union, which evolved through several struggles over affiliation into ILWU Local 37 in the late 1940s. Bulosan himself was involved in the union as a worker and promoter of democratic socialism; he was the primary writer and editor of the union's 1952 Yearbook, in which his inflammatory socialist rhetoric and the leftist commitments of other union leaders were on clear display. It was in regard to this period of defiant collective action on behalf of socialist ideals that Bulosan's America Is in the Heart took its most aspirational tone. Highly influenced by decades of Filipino anticolonial resistance at home and labor radicals, communist fellow travelers, and literary populists in the United States, Bulosan's reconstruction of familiar US principles of equality, rights, and democracy subtly expressed a critical, transformative, and politically radical cast. “America is in the hearts of men that died for freedom; it is also in the eyes of men that are building a new world” (Bulosan Reference Bulosan1996, xxiii–xxiv).

The late 1940s and early 1950s was a period of intense struggle, as both employers and the state ramped up efforts to divide workers, deport leaders, and turn patriotic Filipinos who fought in World War II against imperial Japan into opponents of the radical union cause. But it was also a moment in which heroic struggle animated by a nomos of anticolonial and socialist democratic aspiration was powerfully alive in the ILWU, among farmworkers, and in the West Coast labor movement generally (Fujita‐Rony Reference Fujita‐Rony2003). It is relevant that, as evidenced by the 1952 Yearbook, the radical cannery workers union, like the larger ILWU, linked worker organizing to legal rhetoric of rights. The union routinely defended rights through litigation and embraced formal legal procedures as core commitments of both internal organization and national socialist transformation (see Baldoz Reference Baldoz2011).

The union's progressive posture began to create serious problems during the McCarthy era. Many union leaders were harassed or deported by federal officials. The result was that more conservative and corrupt leaders took control of Local 37. When the young activists who later filed the Wards Cove case started working in the canneries in the late 1960s, the union's leaders were collecting bribes in exchange for work assignments, profiting from gambling operations in the canneries, and collaborating with employers to keep rebellious workers in line (see Chew Reference Chew2012, 120–46). Thus, a new generation of Asian and native workers experienced oppressive conditions and racial discrimination with little of the capacity for collective resistance afforded previously by the union.

The plaintiffs in the Wards Cove and related lawsuits were led by a group of young, second‐generation, mostly college‐educated Filipino workers who took summer jobs in the canneries during the late 1960s and early 1970s. They recounted repeatedly to us in interviews how work in the canneries deepened their understanding about the hardships experienced by their fathers and earlier generations. We often heard invocations of the Tagalog proverb that “one who does not look back to where he came from will not reach [his] destination.”

The young activists had also studied Bulosan's 1952 Yearbook and befriended some of the radical leaders from the early union days, including Chris Mensalves, who sharpened their understanding of and identification with the leftist, social democratic nomos (see Chew Reference Chew2012). The new generation of activists was also influenced by broader currents of the era, including contemporary Black Nationalists, Chicano and Asian American radicals, the multiracial Rainbow Coalition, and the anti‐imperialist opposition to the Vietnam War. Finally, many of the young cannery activists were also allied with the Union of Democratic Filipinos (KDP), a movement of Philippine and Filipino American leftists committed to ousting President Ferdinand Marcos, lifting martial law, breaking the imperial grip of the United States, and promoting democratic socialism in the Philippines as well as in the United States (Toribio Reference Toribio1998). Thus, a complicated array of ideational influences and historical narratives of the colonial experience were fused into the anticolonial, anti‐imperialist, egalitarian workers’ nomos that inspired the activists who filed the Wards Cove lawsuit in the early 1970s.

From Nomos to Actionable Legal Narrative: Challenging Institutional Racism

Tyree Scott, whose words began this article, is widely credited with introducing the strategic legal narrative that bridged the cannery activists’ historical leftist nomos to practical mobilization of Title VII law as a political resource.Footnote ⁶ Scott had much relevant experience in minority labor activism. After returning from a tour as a Marine in Vietnam to discover he could not find work as an electrician in Seattle because the building trade unions excluded African Americans, Scott organized the United Construction Workers Association (UCWA) and launched a direct action campaign that shut down some high‐profile construction sites, including on the University of Washington campus and at SeaTac airport. Scott simultaneously collaborated with some supportive Equal Employment Opportunity Commission (EEOC) officials to initiate Title VII challenges against the exclusionary unions. Scott's campaigns quickly won substantial changes in employment opportunities for black and Asian American workers in the building trades around the country (Gould Reference Gould1977; Griffey Reference Griffey2011).

While collaborating with EEOC officials, Scott befriended several young Filipino activists who had been blacklisted from cannery jobs for “making trouble.” They created the Alaskan Cannery Workers Association (ACWA), modeled after Scott's organization. Scott also provided money for two of the activists, Silme Domingo and Michael Woo, to travel to Alaska, masquerading as University of Washington Fisheries School students, in order to collect evidence—photographs, interview testimony, connections with potential plaintiffs—for EEOC complaints and eventual Title VII lawsuits (Chew Reference Chew2012, 17). The connection to Scott strengthened when the ACWA joined the UCWA and the United Farm Workers to create the Labor and Employment Law Office (LELO), a worker‐controlled law firm dedicated to using civil rights laws to help construction, cannery, and farm workers. LELO attorneys worked with the Alaskan cannery workers to file class action lawsuits against the cannery industry. Three suits were filed against different cannery corporations, one of which was the Wards Cove case that ended up before the Supreme Court fifteen years later.

Jurispathic Courts and the Extrajudicial Politics of Legal Mobilization

We turn now to an account of the jurispathic process through which the legal openings pursued by the cannery workers were destroyed. Like Robert Cover, we portray a process in which state actors kill off alternative interpretive visions of law. However, unlike Cover, who developed his ideas about jurisgenesis and jurispathy using examples that made judges the key actors and courts the central forums of contestation, we give an account of jurispathy that extends into political processes outside of courthouses. Our account follows legal mobilization scholars who decenter analysis of courts and link struggles in courthouses to outside political events and practices. We start with an analysis of court rulings in the Wards Cove case and follow that with sections on the broader context of civil rights politics and the political fights over Congress's response to the Supreme Court. Combining Coverian and legal mobilization analysis, we look at the defeat of the Wards Cove workers as an episode in which a group of relatively powerless rights claimants became entangled in much broader institutional and political struggles.

The Quotas Counternarrative in the Reagan Era

The activists involved in the case have long tied the judicial shifts in doctrine that culminated in Wards Cove to broader political struggles. Diane Narasaki, former executive director of LELO noted: “When we first brought the case, we saw law as an ally. … But that changed the appointment of a new set of conservative federal judges” (quoted in Zia Reference Zia2000, 150). That same feeling was expressed by Tyree Scott (Reference Scott1989) in his press conference immediately after the ruling. Scott declared that the ruling “means that ‘big business,’ through the Reagan/Bush administrations’ Supreme Court appointments, has reshaped the courts in support of management.” Narasaki and Scott are correct to point out that the US Supreme Court was hardly alone in its jurispathic retreat from the more expansive vision of civil rights law in earlier years. The justices and federal judges were players in a larger political campaign aiming to thwart civil rights and related struggles for substantive social justice politics in the workplace. In this regard, the more capacious attention to political context typically offered by legal mobilization analysts provides a necessary supplement to Cover's more judge‐centered analysis of jurispathy.

We do not try to document the full scope of the surrounding political dynamics here; nor do we claim to prove causally that the justices in the majority were driven by broader political pressures. We instead focus on one part of that context to help explain that key symbolic weapon the Supreme Court majority deployed: the powerful counternarrative of quotas. The invocation of quotas to contain workers’ civil rights has a long, well‐documented history in the twentieth‐century United States. Political historian Anthony Chen has traced the invocation of the “Hitlerian rule of quotas” that “spell[s] doom for the free market and meritocracy” (2006, 1238) back to Robert Moses and other opponents of New York's pioneering Fair Employment Laws in the 1940s, and from there to a broader northern coalition of business leaders, conservative Republicans, and rural whites. In later decades, charges about the dangerous specter of quotas remained a staple of conservative challenges to fair employment laws that came from both southern Democrats and northern Republicans (Chen Reference Chen2006).

The quotas counternarrative was a crucial weapon in the civil rights backlash that developed in the late 1970s and 1980s, as multiple facets of long‐developing opposition to civil rights advances coalesced into a formidable campaign. Most importantly, southern conservative whites began to switch to the Republican Party, creating the new Reagan coalition that linked a revitalized Christian evangelical movement with reenergized and newly ambitious big business interests connected through the US Chamber of Commerce and the Business Roundtable. The result was a powerful, albeit at times fractured, marriage of free‐market demands for less government regulation of business, socially conservative demands for more government intervention in private life, and backlash against the social changes that resulted from the civil rights revolution (Edsall and Edsall Reference Edsall and Edsall1992).

While it was by that time unpopular to outright oppose civil rights or racial equality, opposition to quotas maintained broad appeal. Thus, complaints about quotas, real or imagined, became a powerful rallying cry connecting economic and social constituencies that wanted to contain advocacy for racial and gender justice. One sociological study of media reporting found that the specter of quotas had failed to neutralize claims of civil rights in the 1960s but “was much more effective in the late 1980s and 1990s, when quota rhetoric helped undercut affirmative action policies” (Stryker Reference Stryker2001, 13; see also Stryker, Scarpellino, and Holtzman Reference Stryker, Scarpellino, Holtzman and Leicht1999).Footnote ¹³

The Reagan administration was both product and producer of the conservative countermobilization against civil rights. Administration leaders eagerly seized on the rhetoric of quotas to justify new efforts to roll back race and gender reforms in the workplace. Indeed, Reagan had made opposition to EEOC initiatives in the Carter era a centerpiece of his campaign, arguing that “equal opportunity should not be jeopardized by bureaucratic regulations and decisions which rely on quotas, ratios, and numerical requirements to exclude some individuals in favor of others, thereby rendering such regulations and decisions inherently discriminatory” (quoted in Devins Reference Devins1993, 20). Not all of the Reagan administration's initiatives were successful. William Bradford Reynolds's attempts to restore racially exclusionary private colleges and to urge a veto of the Voting Rights Act of 1965 were too transparently exclusionary and thus backfired. However, the more indirect, low‐visibility bureaucratic maneuvering of Clarence Thomas at the EEOC seemed to be more effective. Instead of directly attacking civil rights, disparate impact, or the institutionalized racism narrative, he acted more quietly to refocus the agency's energies away from class action and disparate impact cases (which allegedly led to quotas) and into individual intentional discrimination lawsuits (Belz Reference Belz1991 184–91; Devins Reference Devins1993).

More directly significant for the judicial evisceration of disparate impact, Reagan used new appointments to bring about a conservative shift in the federal courts. Indeed, Reagan appointed three new conservative justices (O'Connor, Scalia, and Kennedy) who anchored the five‐judge majority that executed the Wards Cove ruling against the cannery workers. The broader animus against civil rights law that resonated throughout the domestic policy‐making centers of the Reagan administration undoubtedly influenced judicial nominations and, over time, decisions. Again, quotas were not an important issue in the lower court proceedings in Wards Cove, and the word “quota” was never used during oral arguments before the Supreme Court. Yet many of the amicus briefs filed in support of the employers made claims about the threat of quotas, including briefs from the Reagan administration, the Equal Employment Advisory Council, and the US Chamber of Commerce. As the Wards Cove plaintiffs saw it, “the quota issue was always a red herring, a rationalization for giving business what it wanted” (interview with Nemesio Domingo, March 8, 2013).

The 1991 Civil Rights Act: A Limited Legislative Override

The Supreme Court's 1989 rulings inspired considerable alarm and political mobilization among both the local ACWA activists and national political and civil rights leaders. “As soon as the Supreme Court decision was handed down, Nemesio, Tyree, and I began strategizing about the legislation to reverse the decision and to restore workers’ rights,” recalled Diane Narasaki, who helped to shepherd the original cannery worker class action lawsuits (Zia Reference Zia2000, 152). As the Seattle activists mobilized their allies to challenge the Wards Cove ruling, Democrats in Congress mounted their own effort. Senator Edward Kennedy and Representative Gus Hawkins introduced a bill for a Civil Rights Act of 1990, which sought to override several recent Supreme Court statutory decisions, including Wards Cove. That bill passed both houses of Congress in 1990 but President Bush's veto prevented it from becoming law. The following year, after extensive negotiations over additional veto threats, the compromise Civil Rights Act of 1991 was successfully enacted. Today, that law is often characterized as a successful legislative override of the Court (Eskridge Reference Eskridge1991; Barnes Reference Barnes2004; Farhang Reference Farhang2010), including the ruling in Wards Cove. The reality is more complicated. Some provisions of the 1991 CRA did restore civil rights law to where it had been before the Supreme Court's rulings of the late 1980s (Spann Reference Spann2010; Selmi Reference Selmi2011). Other provisions took civil rights law in entirely new directions, including provisions providing, for the first time, access to jury trials and punitive damages in Title VII cases. While cases involving individual allegations of discrimination became more rewarding, however, class actions challenging institutionalized racism under disparate impact became far more difficult (see Nielson, Nelson, and Lancaster Reference Nielson, Nelson and Lancaster2010).

The provisions targeting the Wards Cove ruling attracted considerable attention during the political maneuvering over the 1991 bill. The public conversation regarding those provisions was dominated by the quotas narrative. For example, President Bush singled out the provisions returning the burden of proof to employers as making the proposal a “quota bill” that he would veto (Devins Reference Devins1993; Runkel Reference Runkel1994; Farhang Reference Farhang2010, 188). Eventually, congressional leaders made key compromises in the legislative language in response to Bush's threats. The final version that Congress enacted retained a provision shifting the burden of proof back to the employer in disparate impact cases, a fact that has led commentators to conclude that the 1991 Act overturned Wards Cove (Farhang Reference Farhang2010, 284, n100).

However, the gains made in the relatively clear burden of proof provisions were weakened by late changes in other associated provisions that defined “business necessity,” changes that made it easier for employers to meet the new burden of proof. The business necessity provision in the enacted law stated that the employer needed only to prove that discriminatory practices were “consistent with business necessity.” In the original 1990 bill, the corresponding provision stated that the employer had to prove that a challenged practice was “essential to effective job performance.” That language was first changed, in 1990, to “must bear a significant relationship” to business necessity, before being further amended to place the “consistent with business necessity” language in the final version (Devins Reference Devins1993, 985–86). Equally important on the incentive side, the 1991 Act allows compensatory and punitive damages for disparate treatment cases, but not for disparate impact, leaving recovery under the latter only to already available equitable relief (Shoben Reference Shoben2003−2004).

Minority civil rights leaders and legal scholars were, and remain, divided about the effect of the 1991 Act on disparate impact, and in particular on the impact of the shifts from “essential” to “significant” to “consistent with” (e.g., Runkel Reference Runkel1994). While many national civil rights groups celebrated passage of the law as a major step forward from judicial retrenchment, the ACWA activists and their allies in the Seattle community were much more skeptical. Tyree Scott told us that he saw the act as a “sellout,” explaining: “[W]hat the civil rights leadership did is basically negotiate something that they saw was in their interests and saved face. But they didn't put back the most important thing. … I mean, yeah, the NAACP. That whole group in Washington that does the lobbying.” He added an insight that seemed remarkably close to critical race theorist Derrick Bell's interest convergence thesis (Bell Reference Bell1980). “When business needs them [the civil rights lobby], they give them a voice, and when they don't need them, they shut them up” (interview with Tyree Scott, March 17 1998).

The effectiveness of the 1991 Act and the damage done by late compromises in statutory text remain matters of some dispute. While it is clear that there was a sharp decline in class action disparate impact cases in the years that followed the Supreme Court's rulings in 1989 and Congress's response in 1991, blame for that decline also lies with a much broader set of legal changes of that same period that together made it more difficult for social movement organizations to use legal actions in struggles for social justice (Neilsen, Nelson, and Lancaster 2010; Staszak Reference Staszak2015, 18–19, 97–115). In particular, more general changes in the rules for bringing class actions significantly weakened civil rights law as a tool for collective mobilization (Selmi Reference Selmi2003; Shoben Reference Shoben2003−2004, 598–99).Footnote ¹⁴ Ultimately, Wards Cove was just one factor among many legal and political changes that reined in the creative rights mobilization that flourished in the 1970s and early 1980s. Nevertheless, as one of the pivotal rulings through which the Supreme Court signaled its rightward shift, Wards Cove still stands as a powerful symbol for a major turning point in civil rights history.

A final, nearly invisible feature of the 1991 CRA proved to be more directly devastating to efforts to challenge conditions at the Wards Cove cannery. As the bill moved toward final passage, Senator Frank Murkowski of Alaska maneuvered to add a provision exempting the lawsuit against the Wards Cove Company from any retroactive application of the new civil rights law. Murkowski and fellow Alaskan Senator Ted Stevens gained support from enough Republican colleagues to make the “Wards Cove exemption” a condition for passage. The Senate added the exemption in a separate, last‐minute amendment in a 73–22 vote (Hanson Reference Hanson1991).

The surviving activists did not yield quietly. They continued to press their case in court for another decade, and channeled local outrage regarding the last‐minute betrayal in the Senate into a broader political movement for civil rights reform. Forming “Justice for Wards Cove Cannery Workers,” they mounted a national campaign to draw attention not just to the offending provision, but also to the broader limits of Congress's response to the ongoing conservative evisceration of civil rights law. ACWA and LELO activists have continued to use Wards Cove as a jurisgenerative vehicle for political mobilization. Nemesio Domingo, Jr., Silme's surviving older brother, visited activist groups around the United States and gave a talk titled the “Third Reconstruction” (Domingo Reference Domingo2000) that focused on how recent changes in civil rights law betrayed the promise of civil rights legislation of the 1960s. Nemesio Domingo and Garry Owens, a Seattle Black Panther leader who became involved in LELO, took the struggle of the Wards Cove workers as far as the UN Conference on Racism and Xenophobia in Durban, South Africa (Domingo Reference Domingo2013).

At the heart of their aspiration has dwelled the desire to build law that facilitates subaltern workers’ challenges to institutionalized racial and sexual inequality. Memories of the collective mobilization against the canneries and bitterness over the outcome in Congress continue to inspire progressive visions of justice in the Seattle activist community. Although the lawsuit finally ended in 2001, political activity around the Wards Cove case continues today. Seattle's US Representative, Jim McDermott, has repeatedly pressed to repeal the exemption through a proposed “Justice for Wards Cove Workers Act,” even though passage of that Act today would be entirely symbolic (H.R. 4275 in the current 112th Congress).

Conclusion

This essay has used the landmark Wards Cove v. Atonio case to explore and demonstrate the value of merging Robert Cover's provocative theorization of legal contestation with social scientific analysis of legal mobilization politics. We have shown how the activist plaintiffs in the Wards Cove case modeled their defiant jurisgenetic campaign around a rights‐based nomos of the type that Cover and legal mobilization theorists alike emphasize. The two analytical frameworks are highly complementary in this regard. Moreover, the Supreme Court's eventual rejection of the cannery workers’ claims and evisceration of disparate impact principles represented a classic instance of what Cover calls “jurispathy”—the routine judicial killing off of legal narratives expressing a compelling egalitarian nomos in favor of visions more acceptable to institutionally privileged actors. Cover's insights thus contribute to legal mobilization analysis a sober skepticism about reliance on courts as allies for creative, defiant legal rights claiming.

Cover's skepticism about the generally conservative commitment of courts to status quo state agendas should not, however, undercut the complex, contingent, and typically mixed assessments of legal mobilization scholars about whether, when, and how litigation does or does not advance egalitarian social change. The Wards Cove case well illustrates the complexity. For one thing, this was not an instance where a litigation campaign aimed to create new law by making novel legal claims and prompting an appellate court to take doctrine in a new direction. However ambitious the workers’ social agenda, the case was filed at a time when the plaintiffs had solid support for their rights narrative in existing case law. Cover's broadly skeptical characterization of jurispathy does not deny, and should not be read to deny, the value of pursuing momentary historical openings and opportunities when progressive reformers can find some support in the courts.

Indeed, the reformers experienced early substantial advances for their progressive rights agenda both in and, especially, beyond the courtroom. The two initial lawsuits led to trial court victories and to settlements over damages and workplace reforms. The settlements not only directly produced institutional change in work conditions, but they also indirectly catalyzed the ACWA efforts to challenge and replace unresponsive and corrupt union leaders, lead a movement for democratic union reform, build a growing multiracial, multi‐issue progressive movement in the Puget Sound region, and amplify their international challenges to the despotic rule of Ferdinand Marcos in the Philippines. It is important to underline that, in legal mobilization terms, the workers initially deployed litigation in a favorable political and legal opportunity structure that supported substantial success in organizing for change. While the lawsuits risked creating opportunities for retrenchment by the Supreme Court, a no‐risk strategy of inaction would have precluded development of the ACWA, leaving aggrieved workers to “lump it.” Of course, recognizing and assessing these advances requires looking to political engagements far beyond what happens in formal legal proceedings, a commitment that legal mobilization scholars have pursued far more than has Robert Cover.

It is relevant to acknowledge legal mobilization scholar Catherine Albiston's (Reference Albiston2010) important point that settling lawsuits for the purpose of advancing immediate goals foregoes the option of shaping new substantive law and creating legal precedents that might produce broader changes. The ACWA activists did settle the early cases, but only after winning at trial. From the start, they were convinced that they had sufficient law on their side to advance their ambitious movement on various extralegal fronts; they had neither the resources for test case litigation nor reason to think that courts would expand further the disparate impact logic.

They later did fight the Wards Cove case through the appeals process to the Supreme Court, not for the prototypical purpose of making new, more progressive law, but to protect “good” law from antiegalitarian reformulation. The lawsuit became a vehicle for retrenchment only because the suit's long and tortuous trek through the lower courts prolonged resolution of the case across more than a decade and three presidential election cycles. Moreover, there is good reason to think that the Court would have found another case as its vehicle for announcing new standards if the Wards Cove dispute had not been available. Indeed, judicial retrenchment was manifest in a series of parallel cases decided that same term by the Court. The jurispathic ruling in Wards Cove thus may be viewed as a large loss for many US workers in and beyond the canneries, but from our hybrid theory perspective, the loss cannot be reasonably attributed to “faulty” or naïve strategies of the cannery activists

While the cannery plaintiffs perhaps did not anticipate the specific legal and political changes of the 1980s, the successful countermobilization by business groups did fit their general view of how law worked. The cannery activists viewed official law as volatile and subject to changing alignments of political power in the state and in society. As noted earlier, they saw law as a product of ongoing struggle between the haves and have‐nots. “At any given time a law, in our view, reflects the relative strengths and weaknesses of its opponents and proponents” (see p. 13). Again, legal mobilization analysts tend to assume a broadly similar but rather more complex posture about the politics of law in specific eras. Such scholarly analysts reject both Cover's view that courts tend to defer to a unified state machine and the instrumental Marxist view that law reflects at any moment the will of unified capitalist groups. Even if the haves generally come out ahead, state structure and political alliances in and beyond the state tend to be far more fragmented and volatile than either portrait suggests.

The macro‐political context of the era was too complex to analyze adequately in this essay, but a full legal mobilization analysis would attend to the many shifts in coalitions among elected leaders as well as Court personnel along with the massive mobilization of business interests that produced the changed legal establishment. Again, we underline the value of sustaining the key commitments of the legal mobilization approach while adding Coverian attentiveness to jurisgenesis and jurispathy.

Finally, we underline again that Cover's concept of jurispathy should not be understood to involve killing alternative nomoi so much as denying their integration into official law. In this sense, jurispathy and jurisgenesis of alternative socially grounded nomoi are best understood as dynamic, dialectically interrelated dimensions of ongoing legal practice and occasional contestation. Our study illustrates that alternative narratives challenging institutional racism at work have continued to thrive among social movement activists despite judicial rejection, legislative abandonment, and the dominant cultural ideology of “racial innocence” (Murakawa and Beckett Reference Murakawa and Beckett2010). That finding echoes historically oriented social movement scholars who have posited that radical visions animating struggles for justice, rights, and democracy rarely die (see Melucci Reference Melucci1989; Tarrow Reference Tarrow and Traugott1995). Rather, alternative visions tend to emerge out of concrete struggles, and then go underground like moles when the context becomes too hot or one generation burns out, only to resurface in altered forms in succeeding eras. Jurispathic courts may continue to play whack‐a‐mole across generations, but their rulings rarely erase defiant visions or kill progressive aspirations altogether. The promises of egalitarian civil rights at work may be thwarted and lost in one era, as Risa Goluboff (Reference Goluboff2007) has shown of labor and economic civil rights in the 1940s, but those same ideas of workplace justice were reborn in vital forms of struggle numerous times over successive decades. However devastating a loss like Wards Cove, struggles for justice regenerate their own force and motivation, keeping alive aspirations for generations to come (Lobel Reference Lobel2003; NeJaime Reference NeJaime2011).

We end by underlining the shared commitment of both legal mobilization analysts and Robert Cover to recovering, documenting, and rendering sensible the legal visions than animate social movements and alternative communities. Such recovery provides an empirical foundation for understanding how inherited structures of hierarchical power offer possibilities as well as pose manifold obstacles to advancing social change. Such analytical narratives are useful for understanding law as one dimension of power amidst other dimensions of power. However, such scholarly exercises of decentered historical recovery also expand our thinking about the fundamental injustices around us and the possibilities of justice that might be considered. As Cover exhorted: “We ought to stop circumscribing the nomos; we ought to invite new worlds” (1983, 68). The legacy of Alaskan cannery workers represents one such worthy commitment to a collective nomos and narrative of democratic aspiration that deserves scholarly attention.