2018 was a tough year for civil rights advocates at the US Supreme Court. Often in close decisions, the court repeatedly narrowed the scope of civil rights protections for consumers, workers, voters, and immigrants. As if this were not enough, the appointment of Justice Brett Kavanaugh to replace retired Justice Anthony Kennedy has turned the court even more conservative for another generation. Civil rights activists cannot count on the Supreme Court as an ally in the fight for further equality and rights protections. But this is not the first time the Supreme Court has abandoned civil rights, and when it happened in the late nineteenth century, Americans found a way to defend what the courts would not.

In the wake of Reconstruction, the situation for advocates of American equality looked especially bleak when the Supreme Court struck down federal prohibitions on racial discrimination in public accommodations in the notorious Civil Rights Cases in 1883. After nearly a decade of optimism and feeling that the federal government was on their side, it became increasingly apparent to civil rights activists that the federal government could not be trusted to protect African American rights. Even worse, the Supreme Court could actually undermine hard fought victories. In response to the court’s perceived bias on behalf of racist white business owners, African Americans and their allies turned away from the court and pursued the protection of their rights locally, through municipal and state government regulation and legislation.

In Massachusetts, African American Bostonians had been instrumental during the late 1860s in pressing for the passage of the state’s first anti-discrimination laws, laws that were among the first of their kind anywhere in the country. Though significant, these statutes applied narrowly to places explicitly licensed by the state, leaving the status of black patrons in unlicensed spaces more ambiguous. Federal civil rights laws like the Civil Rights Act of 1875 offered some relief, but it took constant vigilance on the part of black Bostonians to assure equal access to facilities. This was made all the more difficult following the Civil Rights Cases decision, which struck down broader protections and further emboldened Boston business proprietors to deny black customers service. As one commenter noted, “The annulling of the Civil Rights Act by the Supreme Court of the United States has led a good many proprietors and managers of certain public places of amusement in [Boston] to think that they can refuse colored persons admittance with impunity.”

Black Bostonians refused to allow their rights and future prospects to live or die by court decisions, however. The editors of the Boston Hub newspaper condemned the Supreme Court as “a bench of mere lawyers” who “with an armful of musty precedents, with piles of dusty folios … has met and turned back the young and struggling spirit of liberty.” The court, they concluded, “has kicked against God.” “The spirit of freedom,” the Hub editors declared, “will yet ascend over the laws and life of this people, the Supreme Court and its opinions not withstanding.”

Inspired, in 1885 activists targeted discrimination in an unlikely venue: roller-skating rinks. A booming new pastime, roller-skating attracted widespread attention among Boston’s black community. Though rinks were ostensibly open to the public, it was unclear if the earlier anti-discrimination applied to these new recreation spaces, because they lacked an explicit licensing requirement. As African Americans attempted to try the new amusement, managers and rink employees barred them entry or refused them skate rentals. When patrons objected to the discrimination, rink employees ejected the customers, sometimes violently, even when accompanied by small children. Embarrassed but undeterred, black Bostonians mounted a campaign to expand the state law to protect what the federal government had been unwilling to.

Members of Boston’s long-time activist community sprang into action. They held mass meetings in Boston’s churches and meeting halls, and they petitioned the state government for new laws, with harsh penalties, that would prohibit racial discrimination in all venues, licensed and unlicensed, including skating rinks. They wanted clear laws that left little room for judicial interpretation or ambiguity. “We cannot let this thing go by the courts,” attorney Butler R. Wilson told the legislature’s Committee on the Judiciary. Having lost faith in judicial remedies, these activists used their popular voice to push for a change in the laws themselves.

Boston’s African Americans had a direct role in state lawmaking. One of the protesters, formerly enslaved long-time Republican politician and activist Julius Chappelle, was the only black representative in the state legislature and formally presented new anti-discrimination legislation. Advocates of the new law argued that it was hypocritical and impossible to campaign against racial discrimination in the South while such inequality remained at home. One white legislator who backed the proposed legislation asserted he “did not want to hear anything about southern outrages as long as such things can happen in Massachusetts.” With Chappelle and his supporters leading the charge, the legislature rejected attempts by opponents to kill the bill, and Governor George Robinson signed the new law in June 1885. The new law addressed discrimination in any place of public amusement, such as a skating rink, and any public conveyance, public meeting, or inn regardless of licensed status. It punished anyone who “makes any distinction, discrimination, or restriction on account of color or race.”

Passage of the new legislation was not the end of the story, though, as black Bostonians had to ensure that businesses abided by the new statute. They returned to the legislature several times to amend the law to widen its scope and strengthen its enforcement. Through these challenges they affirmed the power of popular activism to bring the law to their side. In Massachusetts, at least, they could protect their rights. In other states with less sympathetic legislatures and more widespread and violent suppression of black political activity, however, such popular movements were less immediately successful. In the face of such opposition, Black activists and their allies persisted and by fighting locally in and outside the courts eventually succeeded in pressing lawmakers to enact civil rights legislation nationwide .

The story of these Bostonian activists offers a way forward for civil rights progress and protections without the support of Congress or the Supreme Court. In their case, activists used tools of state regulatory and legislative authority as protection from racist actions otherwise given sanction by the high court. Their example pushes activists today to look locally to immediate elections and lawmaking for remedy. Losing the support of the Supreme Court is disappointing and surely a setback, but it need not be the death knell of progress. Now, as then, the future is not determined by mere lawyers with musty precedents and dusty folios. It is in the hands of everyday people committed to continued struggle for civil rights and full equality.