Legal Legitimacy through Judicial Failure: Legal Consciousness, Hegemony, and the Paradoxical Role of Political Trials

Willa Sachs, Yale University

Please see attached extended abstract. This article examines the ways in which legal consciousness is both shaped by and refracted through political trials. Using the New Haven Black Panther trials of 1969-71 as a case study, I argue that political trials serve as a key forum through which hegemonic “legality” (Silbey 2005) – the product of overlapping forms of legal consciousness – is (re)produced. While the hundreds of trials involving revolutionary activists in the 1960s have long fascinated social scientists and legal scholars, little attention has been given to political trials in legal consciousness literature. During the New Haven trials, I argue, the white liberal mainstream reconciled a deep-seated faith in the American Constitution and courts with a growing sense of unease over courtroom injustices by developing a justificatory schema designed to vindicate the courts. In this schema, the mere judicial recognition of the limited capacity of the court to fairly try Black revolutionaries, given the charged political circumstances surrounding the case, was cited as its own form of justice. The judge’s decision to declare a mistrial, in other words, engendered a form of liberal legal consciousness that narrowly conceptualized “justice” as the ability of the court to acknowledge its own limitations (as opposed to redressing racist legal norms and procedures themselves). This schema ultimately diverted attention from racial logics embedded within the legal system and instead problematized the polarized public atmosphere surrounding the case and trial and the threat it posed to the possibility of a fair and “impartial” trial. The justificatory schema I identify sheds theoretical light on the discursive mechanisms through which moments of constitutional rupture, perhaps paradoxically, can re-inscribe the hegemonic power of law.

See extended abstract

 Presented in Session 194. Legal Claims to Legitimacy, Expertise, and Truth