Pitt Law Magazine Feature: Jules Lobel, The Constitution and Solitary Struggle

This story originally appeared in the Fall 2016 issue of Pitt Law Magazine. Read Pitt Law Magazine on Issuu.

Professor Jules Lobel

“I’m not neutral. And I don’t believe academics ought to be neutral. So I challenge that idea,” says Jules Lobel. “I try to write theoretical articles that are sound and carefully researched, but have a point to make — often, a political point.”

The Bessie McKee Walthour Endowed Chair at Pitt Law, Lobel has spent a distinguished career challenging ideas on injustices meted out by the U.S. government on the state and federal level. His most recent role as lead counsel in the landmark 2015 case Ashker v. California on the rights of prisoners in solitary confinement led to a historic settlement that has set a precedent for other states. The result is the most recent of the challenges Lobel has posed across his career, or careers, which combine scholarship and teaching with high-profile cases in connection with his role as president of the Center for Constitutional Rights.

The breadth of Lobel’s 33-year teaching career is suggested by the height of the paper stacks filling his fifth-floor office. On a June afternoon, a 21-gear bicycle perches alongside the paperwork as he relaxes, in shorts and sneakers, at a desk surrounded by family photos. Lobel has just hosted a unique conference at Pitt Law. The International and Interdisciplinary Perspectives on Prolonged Solitary Confinement brought advocates for prisoners’ rights, medical experts, legal scholars, and prison officials together to explore an issue gaining national momentum, thanks to his sustained efforts. He says he’s looking forward to some rest and relaxation. But a review of his work over the past few decades suggests that might be — well, challenging.

Lobel has sued every U.S. administration since Reagan, Clinton, both Bushes, and Obama. The common denominators of the work have been issues of social justice and constitutional limits on government. The cases have included questioning the Reagan administration’s funding of the Contras in Nicaragua, challenging the war powers of both President Clinton in Yugoslavia and President George H.W. Bush in the first Gulf War without Congressional approval, suing over the post-9/11 deportation to Syria of a Syrian-Canadian who changed planes at John F. Kennedy Airport, and demanding clearer standards for detention of prisoners at Guantanamo and in U.S. prisons.

A Bronx native, the 64-year-old Lobel started his career organizing union activists within unions “where the union leadership was corrupt,” he explains. At Rutgers University Law School, distinguished faculty member Arthur Kinoy — a lawyer for the Chicago 7 — was a mentor. After graduation, Lobel continued pro bono work in union and community organizing when he joined the firm of Rabinowitz, Boudin, Standard, Krinsky & Lieberman. The firm’s specialization in international law led to Lobel’s involvement in two major U.S. Supreme Court cases: challenging Reagan’s travel ban to Cuba, and representing the Central Bank of Iran in defending the deal that resulted in the U.S. hostages being released in 1981. His involvement with the Center for Constitutional Rights led to ongoing work in Nicaragua and Central America. Meanwhile, Lobel made a career shift, joining the Pitt Law faculty in 1983. “I liked writing and teaching. I sought a more reflective life,” he explains. “But I was committed to continue my activism.”

“When I started teaching at Pitt, the Cuba travel case was still going on,” he recalls. “While with the law firm, I had written an article in the Harvard International Law Journal. It argued that aid to the contras fighting in Nicaragua violated the neutrality laws of the U.S. That was one of the first criminal statutes adopted by Congress in 1794. I talked to the Center, trying to figure out some way to sue the CIA. It was sort of a screwy way to develop a lawsuit, namely based on a law review article, but we found a statute which allowed a citizen to seek a special prosecutor in such cases. A U.S. district court judge remarkably granted our request for a special investigation. While the Court of Appeals ruled against us on standing, by that time the Iran-Contra scandal had broken, and a special prosecutor was appointed.”

Lobel retains a wry sense of humor about his work. “For many years I mainly lost in court. So I wrote a book about winning by losing,” he explains. (Success Without Victory: Lost Legal Battles and The Long Road to Justice in America was published by NYU Press in 2003.) In a war powers suit that was reprinted in a leading casebook, the Center for Constitutional Rights worked with former Representative Ron Dellums (D-CA), refuting President George H.W. Bush’s authority to go to war with Iraq without Congressional approval. The judge held that the president did not have the constitutional power to go to war alone, but refused to issue an injunction. “The media asked Richard Thornburgh (Pitt Law, ’57, and then U.S. Attorney General), ‘What do you think of this ruling?’ He said, ‘We won.’ But Congressman Dellums claimed on Nightline that we had won, since the judge had agreed with us. The New York Times and Washington Post wrote a number of articles and editorials saying the court decision shows that the president is wrong. And eventually, Bush went to Congress. So the case was successful, even though we didn’t have a judicial victory. And my students helped me on that case!”

Lobel deliberately involves his students in major federal litigation. “I’m not simply interested in teaching them to be good lawyers. I am interested in that, but I also have an interest in inspiring them, having them think about following a non-traditional path. The environment of law school is not fundamentally about social justice — it’s about finding a good career. And in the market they face, to get a public interest job is very difficult, much more difficult than getting a job at a good firm.”

Judith Resnik, the Arthur Liman Professor of Law at Yale Law School, has worked alongside Lobel on prison rights issues. “Jules is a remarkable intellectual force. He has transformed the lives of thousands of prisoners by having insights into the theory of constitutional guarantees and the fortitude to pursue legal claims that were once sitting on the fringe of the law.” she says. “Jules has pioneered an understanding of American law that makes profound isolation for individuals unconstitutional.”

Lobel’s example has inspired students and colleagues. One former student is both. Bret Grote, ’13, now teaches Pitt Law’s prisoner rights course with his mentor. Grote’s recent advocacy for prisoners’ rights in Pennsylvania has won victories in solitary confinement, examinations of mental health issues for prisoners, changes in health care providers at the Allegheny County Jail in Pittsburgh, and toxic exposures of prisoners in Fayette County, PA.

“We were giving up the potential of having the case set a national precedent.Whether you win or settle a case, it’s only one step in the process.”

Chaz Arnett joined the Pitt Law faculty in 2015. His research focuses on issues of mass incarceration and educational access for juvenile offenders: the school to prison pipeline. The inquiry aligns with Lobel’s constitutional expertise, albeit from a different perspective.

“For youth, it’s reframing the issue away from the right to education issue, looking at it in light of criminal punishment,” Arnett explains.

Lobel’s work in incarceration issues, beginning with an Ohio case in 2001, proved even more demanding than his previous international cases. Lobel says that in addition to Eighth Amendment questions, they involved intense fact-finding, grinding on for half a decade. The settlement in the California suit, Ashker, brought by prisoners at Pelican Bay State Prison, came more than four years after the first filing. Creating the terms of the settlement took four months, and Lobel estimates implementing the details will take another 18 months. Lobel says the hardest part of the case — enforcing the settlement — lies ahead.

“I was relieved,” he said of the settlement. “I knew my clients were going to get out of solitary — that we were going to change the system. I was also a little sad that we weren’t litigating the case up to the U.S. Supreme Court. We were giving up the potential of having the case set a national precedent. Whether you win or settle a case, it’s only one step in the process. And in this case, a victory will turn into a loss, unless we are vigilant over the next several years to really get the prison system to change.”

Christine H. O'Toole, Pitt Law Magazine