50 years on, Mark Rosenbaum remains the 'radical lawyer' he dreamed of being

Mark D. Rosenbaum hadn't received his bar card when he argued before U.S. Supreme Court Justice William O. Douglas a major issue in one the of most important public interest cases in U.S. history: the prosecution of Daniel Ellsberg for leaking the Pentagon Papers. The ensuing 50 years of his practice have been a Forest Gumpian tour through the nation's principal legal disputes.

"It is truly extraordinary for somebody to have spent 50 years as a public interest lawyer at the level Mark has and across so many different issues," Rosenbaum's frequent co-counsel and collaborator, Erwin Chemerinsky, said in an interview.

This isn't a retirement story, though.

At 76, Rosenbaum still has major cases all over the country. "They'll have to carry me out," Rosenbaum said when asked if retirement was imminent.

Earlier this month, Rosenbaum, senior special counsel for strategic litigation at Public Counsel, won a federal court order that will force the Department of Veterans Affairs to use 388 acres of prime real estate in West Los Angeles for its intended purpose of housing and caring for disabled veterans. In interviews over the summer, before the VA trial began, Rosenbaum said, "I design cases so that the narratives and the great themes are driven by the stakeholders themselves. I think that's what winning cases is all about.

"There's no defense to unhoused veterans sleeping on the sidewalks," he said as an example.

When Rosenbaum graduated from Harvard Law School in 1974, the Vietnam War was drawing to an ignominious end. He joined the legal profession at a heady time when successful fights for the rights of women and minorities made young lawyers believe there was little they couldn't accomplish with a good legal argument. Parallels between then and now have been drawn as young people have said they were drawn to law school angered by the Great Recession and the policies and rhetorical stylings of former President Donald Trump.

While Rosenbaum and other lawyers of his generation say they admire these young people, they also see them as more pessimistic, perhaps with reason. Federal judges, even those who were conservative, were once open to hearing arguments that pushed the boundaries of jurisprudence, they say.

"I find it much more challenging now than it ever was before," Rosenbaum said.

Rosenbaum isn't pessimistic, though. Although most of his cases are in federal court, he has carved out a robust practice in state courts across the nation that he sees as a sort of end-run around what he has been blocked from doing in federal courts.

"One difference between 1974 and 2024 for civil rights attorneys is to move the focal point of litigation to state courts wherever possible. Because state courts and state constitutions, I think, are closer to the original intent of the federal Constitution than the way the federal courts are construing the Constitution," he said.

But let's start at the beginning.

Rosenbaum was not supposed to be a lawyer. He was supposed to be a doctor. He was supposed to live out the dream of his father, whose plans had been derailed by the Great Depression. That changed when Arthur Kinoy, who defended American communists, including Ethel and Julius Rosenberg, in the 1950s and civil rights leaders in the 1960s came to speak at the University of Michigan, where Rosenbaum was an undergraduate.

"I heard a radical lawyer speak and thought, 'That's what I want to be,'" Rosenbaum recalled.

Yet the expectation that he would go to medical school was so great that young Mark applied to several top medical schools (and got into them all) and to just one law school. He didn't tell his parents he was going to law school until the night he left their home in Cincinnati for Boston. Until then, David and Evelyn Rosenbaum thought their son was going to Harvard Medical School.

Law school wasn't what Rosenbaum envisioned. His contracts professor wasn't describing momentous David v. Goliath battles the way Kinoy had in his speech at Michigan. "I just didn't know what to make of it," he said. "I was completely demoralized."

He thought about leaving law school but in his second year he met Gary Bellow, a longtime professor at Harvard who pioneered law school legal clinics. Bellow spent a lot of time in California representing farm workers and Black Panthers members.

"I hung around him like a groupie to Michael Jordan or Michael Jackson," Rosenbaum said.

In 1972 and still in law school, he was offered a chance to go to Harrisburg, Pennsylvania, to help with the defense of Philip Berrigan and Elizabeth McAlister, a Jesuit priest and nun, who were part of the "Harrisburg Seven" - antiwar activists accused of plotting to kill Henry Kissinger. They were acquitted and Rosenbaum was hooked.

"I thought, 'Boy, this is what I want to do.'"

Leonard Boudin, who had defended the Harrisburg Seven, invited Rosenbaum to Los Angeles to defend Ellsberg, the military analyst who leaked military secrets about the Vietnam War to the news media. "At first, I just disappeared from law school and then I took a formal leave of absence," Rosenbaum recalled. (Boudin's grandson is Chesa Boudin, the former district attorney in San Francisco.)

The night before opening arguments were scheduled to begin, the government disclosed that the FBI had wiretapped a lawyer for the defense but wouldn't disclose what information was captured. Boudin and Leonard Weinglass, the lead trial lawyers for Ellsberg, were preparing their opening statement. They asked U.S. District Judge William Matthew Byrne Jr. to stay the case until they learned the facts about the wiretap.

Byrne denied the motion but agreed to delay the trial until the next afternoon for the lawyers to take a writ. That turned out to be the first chapter of the Watergate scandal.

By happenstance, U.S. Supreme Court Justice William O. Douglas was in Pasadena attending the 9th Circuit Judicial Conference. "We learned he was there. So, while the principal lawyers were preparing opening arguments, a brilliant young lawyer named Peter Young and I -- a law student -- prepared papers to go and ask him to stay the case. And it wasn't because we were the best qualified. It was because the lead lawyers were preparing their opening arguments."

The following morning, Douglas convened a panel with two 9th Circuit judges in a hotel ballroom to hear arguments about the wiretapping. Prosecutor David Nissen and Weinglass were there too.

"There had been a party there the night before. My first job was to clear all the beer glasses and liquor glasses off the table so we could sit down and argue," Rosenbaum recalled. "I kept thinking, 'What am I doing here? I'm going to be disbarred before I'm even barred. I had no business appearing in front of a justice of the Supreme Court.'"

"Why are you wiretapping these lawyers?" Douglas demanded of Nissen, as the hearing got underway.

Nissen began to recite case law, but Douglas interrupted him.

"I'm not asking for case law. I want to know why you are doing this?"

When Nissen again tried to respond with case citations, Douglas pounded his fist on a table and demanded: "I want to know why the government has to be in the defense camp!"

Then the justice turned to the defense lawyers and began to ask about a part of their brief that Rosenbaum wrote. There was an awkward silence. Rosenbaum was the one who knew the answer to Douglas' question. He also wasn't licensed to argue before any court. Finally, Rosenbaum spoke up and answered the justice's question.

Douglas smiled. "I thought, 'OK.' So, I answered another question or two," Rosenbaum recalled.

The justice had heard enough. "I'm going to stay the case," Douglas told Rosenbaum. "Draft up an order."

"I had no idea what that meant. So, I did what anybody would do in that situation. I went into a corner and pretended to be writing. Fortunately, Leonard Weinglass," who had represented major counterculture figures including the Chicago 7, "came over and showed me what to do," Rosenbaum said.

The stay of the case turned out to be dispositive because in the time it took for certiorari to be petitioned before the court and denied, six or eight months went by. By then, what happened at the Watergate complex in Washington, D.C. had started to become known. "When we got back, we had a new jury and new momentum and ultimately the case was dismissed on May 11," 1973, Rosenbaum said.

He didn't return to Boston right away. He had gotten to know Ramona Ripston, who became executive director of the ACLU of Southern California in 1972. He worked at the ACLU during the summer of 1973 before returning to Harvard to finish his last year of law school, but his heart remained in public interest work in California. "The minute my last exam was over, I got in my car and drove back to L.A. ," he said.

Over the next 40 years, Rosenbaum litigated most of the ACLU of Southern California's biggest cases, arguing four times before the U.S. Supreme Court. He has continued to bring major public interest litigation since moving to Public Counsel 10 years ago. Much of his work has involved access to better education for K-12 students.

• In Williams v. California, he secured a $1 billion settlement for textbooks, teachers and facilities for underserved schools throughout California. Williams v. California, No. 312236 (SF Super. Ct., filed May 16, 2000).

• In Gary B. v. Whitmer, he established a federal constitutional right of access to literacy, resulting in a $94.4 million settlement for Detroit students. He also secured a state constitutional right of access to literacy for California students in Ella T. v. California, leading to a $53 million program for literacy in disadvantaged schools. His work in IntegrateNYC v. State of New York established a right to a sound basic education, addressing segregation and under-resourcing in New York City schools.

But he has also brought major cases on behalf of immigrants:

• In Gregorio T. v. Wilson, he successfully challenged Proposition 187, the voter-approved measure that would have denied immigrants who entered the U.S. without permission access to public services, including K-12 and higher education, health care and social services. Gregorio T. v. Wilson, 59 F.3d 1002 (9th Cir. 1995).

• He played a key role in blocking the Trump administration's rescission of the DACA program. Regents of the University of California, 591 U.S. 1 (2020).
• He successfully brought litigation for government-paid mental health assistance to families separated by the Trump administration's "Zero Tolerance" for unauthorized immigration policy. Ms. J.P. v. Barr, 2:18-cv-06081 (C.D. Cal., filed July 12, 2018).

And major voting rights cases:

• In Garza v. Board of Supervisors, a major Voting Rights Act case filed in 1990, he successfully argued that a redistricting plan effectively diluted Latino voting power in Los Angeles County elections. Garza v. County of Los Angeles, 756 F. Supp. 1298 (C.D. Cal. 1991).

There were cases that affirmed the right of interstate travel, Saenz v. Roe, 526 U.S. 489 (1999); Kolender v. Lawson, 461 U.S. 352 (1983); and the right to counsel for minor immigrants being held in detention. Perez-Funez v. INS, 619 F. Supp. 656 (C.D. Cal. 1985).

He also continued to represent counterculture figures. He successfully argued for the release of Black Panther Elmer "Geronimo" Pratt, who claimed the FBI framed him for the 1968 murder of a schoolteacher in Santa Monica. Pratt v. California, No. A432357 (LA Super. Ct, filed 1997). And he represented Jane Fonda in a 1980 case that sought to stop the police from spying on political activists. Coalition Against Police Abuse (CAPA) v. LAPD.

Evan Caminker, professor and dean emeritus at University of Michigan Law School, worked with Rosenbaum on Saenz v. Roe, which challenged a California law that limited welfare benefits a person could receive after moving here from another state.

"The right to travel is not an enumerated right and the court made quite clear that it was not fond of non-enumerated rights. So, he came up with this idea that the case was really about federalism - a dispute between states and citizens. Citizens should be able to choose what states they want to affiliate with, but states should not be able to choose what citizens they affiliate with. The court didn't write the opinion as we wanted them to because they were stuck with old precedents. But that's an example of the way Mark approaches things," Caminker said.

"There's no question that he's the driving force behind the big picture vision of what a lawsuit looks like. That's true whether the law is on his side or not on his side, or unformed. If the language isn't going to fit anymore, the ideas aren't going to resonate anymore, we just package differently so they might be receptive," Caminker explained.

Civil rights attorneys say Rosenbaum has laid down so many legal markers that he now litigates under precedents he set decades ago. "He really shaped what education jurisprudence and civil rights jurisprudence looks like," said Amanda Mangaser Savage, litigation counsel at Public Counsel

He has taught at law schools at UCLA and Michigan and, improbably, at Peking University in Beijing. "His class was eye-opening for our students, they found him absolutely inspiring," said Philip McConnaughay, the founding dean of Peking University School of Transnational Law, which offers an American style juris doctorate but includes a Chinese law curriculum.

"He was a recruiting factory for us," McConnaughay said.

Caminker first met Rosenbaum when they taught at UCLA together in the early 1990s and he hired him to teach at Michigan for several years.

"I've never seen anybody more inspiring," Caminker said. "Even people who want to work on Wall Street can't help but come away caring about social justice and giving back to society, whatever that means to them."

Anyone who has watched Rosenbaum argue a case, or just talked to him about his work, can't help but marvel at the way he can command people's attention. He isn't a big man; his voice doesn't boom. He doesn't suck up the oxygen when he enters the room. His arguments aren't florid, but they just make sense, their simplicity is their brilliance. Of course, men and women who served in the U.S. Armed Forces shouldn't be sleeping on the street. Of course, children living in one of the richest nations on earth should be taught to read and write.

"There are a lot of lawyers in the public interest world who are incredibly skilled. Mark is generally the one with the master idea. He looks around the world and says, 'What are the biggest problems and how do I invent the tools to attack them?" Caminker said.

"Mark is incredibly strategic," said Kathryn Eidmann, president and CEO of Public Counsel. She pointed to his shift to state litigation, particularly in large states like California, which can often influence other states by its sheer size and megaphone.

"Mark can take doctrinal innovation and turn it into the law," said Mangaser Savage, the litigation counsel at Public Counsel, "I think that is just striking."