Freedom fighters around the globe commemorate July 13 as the day that three Black women gave birth to a movement. In the five short years since #Black LivesMatter arrived on the scene — thanks to the creative genius of Patrisse Cullors, Alicia Garza, and Opal Tometti — the push for Black liberation from state-inflicted violence has evolved into one of the most influential social movements of the post-civil rights era. 

Black Lives Matter has always been more of a human rights movement rather than a civil rights movement. BLM's focus has been less about changing specific laws and more about fighting for a fundamental reordering of society wherein Black lives are free from systematic dehumanization. Still, the movement’s measurable impact on the political and legal landscape is undeniable. 

Since 2013, the organizing labor of BLM has led to the ousting of high-profile corrupt prosecutors. In Chicago, BLM pressure led Anita Alvarez — who had inexplicably failed to charge police officers who shot at least 68 people to death — to lose her re-election bid for Cook County prosecutor. And in Florida, BLM helped end Angela Corey’s reign as a state attorney. Corey remains infamous for failing to convict Trayvon Martin’s killer George Zimmerman while prosecuting Marissa Alexander, a Black woman who didn’t hurt anyone when firing a warning shot at her abusive ex-husband. 

Podcast: Hear Patrisse Cullors on the Evolution of Black Lives Matter

BLM’s work certainly doesn’t stop there. Their organizing online and on the ground helped lead to the resignation of the University of Missouri president over his failure to deal with racism on campus. BLM compelled Democrats to restructure their national platform to include issues such as criminal justice reform, and the movement contributed to the election of Black leftist organizers to public office, such as activist Chokwe Lumumba to mayor of Jackson, Mississippi. 

BLM’s work also led to the release of four unprecedented U.S. Department of Justice reports that confirm the widespread presence of police corruption in Baltimore, Chicago, Ferguson, and Cleveland, as well as the publication of a watershed multi-agenda policy platform — authored by over 50 black-centered organizations — that lays bare the expansive policy goals of the movement. The fact that these accomplishments have happened so quickly is an extraordinary achievement in and of itself.

Moreover, the broader cultural impact of BLM has been immeasurably expansive. BLM will forever be remembered as the movement responsible for popularizing what has now become an indispensable tool in 21st-century organizing efforts: the phenomenon that scholars refer to as “mediated mobilization.” By using the tools of social media, BLM was the first U.S. social movement in history to successfully use the internet as a mass mobilization device. The recent successes of movements, such as #MeToo, #NeverAgain, and #TimesUp, would be inconceivable had it not been for the groundwork that #BlackLivesMatter laid. 

Many have suggested, erroneously, that the BLM movement has “quieted” down in the age of Trump. Nothing could be further from the truth. If anything the opposite is true: BLM is stronger, larger, and more global now than ever before. The success of initiatives such as Alicia Garza’s Black Census Project — the largest national survey focusing on U.S. black lives in over 150 years — and Patrisse Cullor’s launch of the grassroots effort Dignity and Power Now in support of incarcerated people, both exemplify the BLM movement’s continued impact, particularly in local communities. 

The idea that BLM is in a “decline” stage is false. Instead, what is true is that American mainstream media has been much less willing to actually cover the concerns of the BLM in part because it has been consumed by the daily catastrophes of the Trump presidency. Nonetheless, it would be a mistake to assume that BLM is “dwindling” away simply because the cameras are no longer present. The revolution is still happening — it is just not being televised. All throughout the country, BLM organizers are at work in their local communities feverishly fighting for change and relentlessly speaking truth to power. 

Ironically, many of the debates that have come to define the age of Trump, such as the immigration debate, are arguably indirectly influenced by BLM. A notable example: Recently, some congressional Democrats have called for the abolition of the Immigration and Customs Enforcement, which has been violating the rights of undocumented immigrants. What has been missing in much of the mainstream coverage of the ICE debate is an acknowledgment of how the democratic left’s radicalization would not have been possible without the efforts of Black radical grassroots social movements, such as BLM.

Indeed, long before congressional Democrats dared to call for the abolition of ICE, #blacklivesmatter activists pioneered the call for an end of modern policing in America. The language of “abolition” comes directly from the work of grassroots activists, such as those in the Black Lives Matter Global Network. Their work helped to revive a long black radical tradition of engaging the rhetoric of abolitionism.

We literally would not even be using the word “abolition” — let alone embracing it as a framework — had it not been for the labor of BLM activists. The fact that Democrats are gradually calling for the abolition of ICE is a testimony to the continued impact of BLM as a social movement.

As we reflect on five years of BLM, we would do well to consider the myriad ways that #blacklivesmatter has influenced our contemporary moment and given us a framework for imagining what democracy in action really looks like. Whether it be transforming how we talk about police violence or transforming how we talk about “abolitionism,” BLM has succeeded in transforming how Americans talk about, think about, and organize for freedom.

Frank Leon Roberts is the founder of the Black Lives Matter Syllabus and teaches at New York University. 

Judges “must interpret the law, not make the law,” observed Judge Brett Kavanaugh in accepting Donald Trump’s designation to fill Justice Anthony Kennedy’s seat on the Supreme Court.  This oft-repeated assertion is an invention of conservatives who seek to criticize and curtail rights-enhancing decisions of the Supreme Court. But the assertion that judges should not make law rests upon a fundamental misunderstanding of the role of judges within our common law tradition.

It is a hallmark of our common law system that judges not only resolve the controversies before them but, in doing so, write opinions that explain their decisions and identify the legal principles and factual conclusions upon which the decisions rest. These opinions are designed to persuade the litigants and the public that the case was decided fairly and in accordance with law. But the written opinions also serve as a source of law for future controversies. In this way, common law courts resolve individual disputes and, at the same time, issue opinions that create legal precedent which guides future behavior and informs subsequent adjudications. 

In writing opinions that will serve as precedent and in relying on precedent as a source of law, the Supreme Court functions as a common law court. The justices of the court who write these opinions are unquestionably engaged in making law, not merely in applying law.

By way of example, the entire body of law regarding freedom of expression has been created by the Supreme Court. The First Amendment provision pertaining to freedom of speech and press reads: “Congress shall make no law abridging freedom of speech or of the press ….” The text seems clear. But reading the text alone fails to capture the scope of the provision. We know, because the Supreme Court has told us, that “no law” does not really mean “no law.” And the proscriptions of the First Amendment are not limited to “Congress.”  They apply, as well, to the executive branch and to state and local governments. Moreover, the First Amendment extends its protective reach beyond “speech” and “press” as it also guards against government censorship of movies, artwork, the internet, and other forms of expression. 

These deviations from the text of the First Amendment and the expansion of free expression beyond its narrow words were accomplished entirely by judicial lawmaking. The First Amendment doctrine against “prior restraint” that was invoked in the Pentagon Papers case was a creature of judicial lawmaking. So too were the principles of “symbolic speech” that allowed a student to wear a black armband to class in protest of the Vietnam War; and the general prohibition of “vague” enactments that secured the free speech rights of civil rights marchers in Birmingham, Alabama; and the presumption against “content-discrimination” that protected the Brooklyn Museum from the censorship efforts of former Mayor Giuliani. In fashioning each of these legal doctrines the court was making law. 

Judicial lawmaking is not unrestrained; nor should it be. But the restraints come from well-accepted protocols of the judicial process. They come from the obligation to defend judicial decisions in publicly issued opinions, from the need to rest the decisions upon careful fact-finding based on publicly-disclosed evidence, and from the requirement that the decisions reflect reasoned outcomes drawn from legal principles. Respect for judicial precedent also provides an important restraining influence. 

Moreover, when engaged in the adjudicative process, judges do not ignore the textual provisions they are considering. Indeed, the text is generally the starting point for any analysis, and judges try to capture the intent of the authors of the text where possible. But a complete judicial analysis must extend beyond text and beyond any original understanding of the text to a recognition of the policies served by the text and an application of the principles that emerge from the text. 

The problem is not that judges engage in lawmaking. It is that, occasionally, when measured against the requirements of the craft, they do a bad job of it, as Justice Scalia demonstrated when, in interpreting the right-to-bear-arms under the Second Amendment, he ignored precedent and cherry-picked history to reach a deeply wrong-minded conclusion. Scalia’s opinion in that case demonstrates that conservative as well as liberal judges engage in the lawmaking process under our common law system. 

The genius of the common law system is that it provides both stability and flexibility as the law develops to address new circumstances. As applied to constitutional controversies, the process allows our foundational document to evolve and adapt. Kavanaugh's claim that judges should “interpret” but not “make law” represents a crude and erroneous attempt to constrain this notion of the Constitution as a living document. 

Since judicial interpretation often involves lawmaking, his claim rests upon a false dichotomy. It is one that misleads the American people regarding the proper role of the Supreme Court. And it invites unfair disparagement of the court when it pursues its historic obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.

Hina Shamsi, Director, ACLU National Security Project & Corey Stoughton, Advocacy Director, Liberty

As President Trump visits the United Kingdom, the focus has been on strained trans-Atlantic relations, his intervention in domestic politics, and massive public protests.

A different, diplomatically-couched protest has received less attention but sends a consequential signal about the so-called “special relationship” between the two countries: U.K. parliamentarians are concerned that under Trump, America could return to a policy of torture — and they are warning British intelligence agencies to guard against it.

Parliament’s Intelligence and Security Committee released a pair of reports at the end of June providing extensive detail about U.K. complicity in torture, rendition, and other abuses of detainees by the U.S. military and the CIA during the George W. Bush administration. The reports by the committee, which oversees the U.K.’s intelligence agencies, also focus on policy changes needed to avoid a repeat of such abuses.

The committee uncovered at least 166 instances in which British officials either directly witnessed or had credible information suggesting that torture and abuse were carried out by Americans. It also found 232 cases in which U.K. personnel continued to interrogate or provide intelligence about a U.S.-held detainee even after they knew or suspected that the detainee had been abused. And there were 192 cases in which the U.K. accepted intelligence information obtained by the U.S. from detainees the U.K. knew or should have suspected had been tortured or abused.

The committee found dozens of instances in which the U.K. provided intelligence or financial support to illegal U.S. “renditions” — in which the U.S. essentially kidnapping people and transferring them to third countries where they were subjected to torture and degrading treatment.

The stories the committee tells are harrowing. It cites internal reports from U.K. intelligence officers who visited U.S. detention facilities and saw prisoners hooded and held in painful “stress” positions for hours on end. It describes the CIA’s practice of forcing detainees into small wooden crates designed so that they could neither lie down nor stand up.

The committee describes U.K. intelligence officials documenting detainees’ accounts of sleep deprivation and other forms of abuse — and facing internal pressure from higher-ranking officials to remove those details from their reports. It tells of U.K. foreign service officers walking through the halls of the U.S. detention facility at Bagram Air Force base in Afghanistan, hearing “audible screams” coming from detainees. It describes how U.S. officials asked U.K. officers to leave an interrogation room so they would have “plausible deniability” when the U.S. interrogator “roughed up” the detainee.

How did the U.K. become the Best Supporting Actor in the U.S.’s shameful torture drama? The committee suggests that British intelligence agencies may have been “deliberately turning a blind eye so as not to damage the relationship [with the U.S.] and risk the flow of intelligence.” It notes that the U.K. is the “junior partner” of American intelligence agencies, relying — perhaps over-relying — on the U.S. for intelligence. The committee also says that the U.K. let pressure to share intelligence distract from its obligations to uphold fundamental human rights.

The U.K. intelligence agencies’ own explanation to the parliamentary committee is that they were taken unaware by America’s rapid abandonment, in the aftermath of 9/11, of what the U.K. assumed was a shared set of basic values.

The chief of the U.K.’s Secret Intelligence Service noted that “there was an assumption prevailing that the U.S. would be behaving lawfully. Nothing in our previous experience before 2001 had led us to doubt that.” As a result, he said, the U.K. failed for too long to “join the dots” and fully comprehend its complicity in torture and abuse by its closest ally.

Whatever you think of this explanation from U.K. agencies mired in complicity with torture, we live now in less innocent times. The committee repeatedly refers to a current risk that the U.K. will once again be pressured to choose between complicity in torture and continued cooperation with America. It calls for further tightening of rules to prevent U.K. intelligence agencies from participating in interrogations and exchanging intelligence when there is a serious risk of involvement in torture or mistreatment.

Ominously, the committee specifically refer to “the clear shift in focus signaled by the present US administration,” and asserts that reliance on past U.S. assurances that U.K. territory will not be used for rendition “is completely unsatisfactory.”

Diplomacy may have stopped the committee from naming the sources of its renewed concern, but there can be no doubt that President Trump and CIA Director Gina Haspel are those sources. After all, Trump has repeatedly advocated for a return to torture. And although he has not carried out that promise — or threat — he did succeed in getting the Senate to confirm a CIA director who oversaw torture, and participated in covering up and destroying torture evidence.

Now, Prime Minister Theresa May is welcoming Trump. In advance of his arrival, the U.S. ambassador went on the BBC to extoll the “special relationship” between the two nations and laud the “unprecedented interoperability” of the American and British intelligence and security apparatus.

But the looming fear of future complicity in rights violations threatens that relationship. When the U.K. parliamentarians released their reports, they warned, “We are unconvinced that the Government recognizes the seriousness of rendition and the potential for the UK to be complicit in actions which may lead to torture or CIDT” — cruel, inhuman, and degrading treatment. Nevertheless, they noted that U.K. intelligence agencies “are monitoring the actions of their US liaison partners in order to identify at an early stage any shift in policy on detainees.”

Trump is now straining America’s traditional alliances in unprecedented ways. Even in these dark and turbulent times there is some good news — he should not count on America’s Western allies to go along with any return to torture.