Disintegration

The silver lining behind the Supreme Court\u27s decision to disintegrate the Seattle and Louisville public schools is that the decision also runs the risk of disintegrating judicial review. Parents Involved in Community Schools v. Seattle School District No. 1 holds that the Constitution bars voluntary, race-conscious efforts by two local school boards to retain the racial integration that they worked so hard to achieve after Brown. In so holding, the Court curiously reads the Equal Protection Clause as preventing the use of race to pursue actual equality, and instead insists on a type of formal equality that has historically been associated with thinly veiled efforts to disguise racial oppression--the type of oppression that the Court authorized in upholding the separate-but-equal regime of Plessy. By using the Constitution to protect passive resegregation from active integration, the current Court ends up constitutionalizing the culture\u27s regression to the days of greater racial separation--a separation that Brown found to be inherently unequal. As a result, the new Resegregation decision has not only realigned the current Court with its own racially oppressive past, but it has also distanced the Court from the nation\u27s hope for a racially progressive future. Once the decision is understood in this way, the question becomes whether the case will begin to undermine the legitimacy needed for the Court to continue its activist conception of judicial review. Because the views of the Justices seem so transparently political, the threat to judicial legitimacy that emanates from the Resegregation case may end up exceeding the nation\u27s patience for continued Supreme Court interference in the nation\u27s racial policymaking process. There can be no assurance that the case will prompt such a reconsideration of judicial review. Part I of this article describes the manner in which the Resegregation decision has marginalized the importance of racial integration. Part I.A. describes the Seattle and Louisville integration plans under consideration in the case. Part I.B. describes the various Supreme Court opinions issued in the decision invalidating those plans. Part II discusses the impact that the Resegregation decision is likely to have on the nation\u27s ever-evolving conception of equality. Part II.A. explains how the decision effectively overrules Brown--by protecting the interests of disappointed white parents at the cost of advancing racial resegregation--despite the fact that it is doctrinally difficult to support such a result. Part lI.B. argues that the plurality opinion of Chief Justice Roberts now gives official recognition to an updated form of racism, in which supposed equality is used as a tool of racial oppression. Part III discusses the effect that the decision is likely to have on the future of judicial review. Part III.A. illustrates that the decision to invalidate the integration plans at issue can best be understood as political rather than doctrinal in nature. Part III.B. expresses the hope that such transparent judicial politics will cause the Supreme Court to lose the perceived legitimacy that it needs to continue supplanting the racial policy preferences adopted by the representative branches of government. The conclusion suggests that, while one may hope for the disintegration of undemocratically activist judicial review, the long persistence of racial oppression in the United States does not afford much basis for optimism in achieving that end

Functional Analysis of the Plain-Error Rule

In this article, I attempt to do two things at once. First, I attempt to analyze the Supreme Court\u27s jurisdiction to conduct plain-error review of state court decisions. The plain-error issue merits consideration not only because of its intrinsic interest and arguable complexity, but also because the question whether the Supreme Court is authorized to engage in plain-error review is an open one that I would like to help resolve. My second objective, however, is the more important of the two. In the context of analyzing plain-error review, what I really want to do is analyze legal analysis itself. There are a variety of ways to approach legal problems, which can be usefully divided into two categories. One category strikes me as sensible, the other as silly. In the process of analyzing the plain-error issue, I hope to demonstrate which is which

\u3ci\u3eFisher v. Grutter\u3c/i\u3e

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by personnel changes. The author predicts that the Court will invalidate the Texas plan in a narrow opinion that leaves open the theoretical possibility of some future affirmative action plans surviving constitutional scrutiny. But ironically—as a proponent of racial justice—she hopes that any decision to invalidate the Texas plan expressly overrules Grutter and articulates the Court’s apparent preference for shutting the door on affirmative action completely, rather than disingenuously allowing the light of false hope to seep through a crack in the doorway. If the Supreme Court closes the door, the political process can react directly to the Court’s racial ideology, rather than continuing to be distracted by the Court’s coquettish conception of racial equality. With any luck, this will put the future of affirmative action back in the hands of the political branches—which, of course, is where it belonged to begin with

Good Faith Discrimination

The Supreme Court\u27s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court\u27s racial jurisprudence stem from the Court\u27s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination

Race Ipsa Loquitur

The goal of this Article is to make the existence of invidious racial discrimination in the United States so palpable that it can no longer be denied. Part I argues that racial inequality is so pervasive, unconscious, and structural that it has simply become an assumed fixture of United States and is rarely even noticed. Section I.A describes the history of racial subordination in the United States. Section I.B invokes the concept of disparate impact to illustrate the continuing manifestations of invidious discrimination in contemporary culture. Part II describes the manner in which the culture nevertheless chooses to deny the existence of continuing racial discrimination, even in the face of such stark racial disparities. Section II. A attributes this denial to cultural biases that can be conscious, blatant, implicit, or structural. Section II.B describes the way in which the Supreme Court has invoked the doctrinal distractions of intent and racial balance to sanitize the culture’s commitment to racial stratification and divert attention from the Court’s de facto protection of white privilege. The Article concludes that meaningful racial reconciliation could be achieved in the United States only if United States culture were willing to act on a truth about its racial values that it is unlikely ever to admit

Just Do It

Racial injustice has always been a problem in the United States. The most salient victims of the Nation\u27s discrimination against racial minorities have included indigenous Indians, Chinese immigrants, Japanese-American citizens, Latinos, and of course blacks. But as the current war on terrorism illustrates, under the right conditions, almost any racial group can come within the scope of America\u27s discriminatory focus. It is common to suppose that that there is a difference between the progressive and the conservative ends of the political spectrum concerning the issue of race. However, those commonly accepted differences pale in comparison to the overriding similarity that exists between progressives and conservatives. Both progressives and conservatives are liberals in the classical sense of the term. And the tenets of liberalism seem destined to preclude us from ever achieving any meaningful level of racial equality in the United States

Doctrinal Dilemma

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009). Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves be read to permit precisely the type of race-conscious affirmative action that they might initially be thought to prohibit. Capitalizing on the self-interested desires of states to avoid federal-funding cutoffs, Professor West-Faulcon constructs an argument that is both analytically sound and enticingly clever. However, that does not mean that the argument is free from a potentially fatal flaw. The problem is that doctrinal arguments alone cannot compel adherence to policies that are sufficiently unpopular to mobilize effective political opposition. Alternate doctrinal arguments can always be developed that are cogent enough to support the outcomes favored by socially powerful opponents, and the original argument can always be marginalized to the point where its analytical soundness ceases to appear particularly relevant. This problem creates a dilemma for those who are tempted to formulate doctrinal arguments as a means of advancing their own racial-equality agendas. Participation in a syllogistic game that purports to be governed by doctrinal rules but actually uses those rules simply to mask the dispositive role of political preferences runs the risk of reinforcing the authenticity of the game itself. But declining participation in the game precludes the possibility of securing even those occasional victories that are permitted in order to convey the impression that the game is legitimate. It is difficult to see how the dilemma can ever be satisfactorily resolved. However, the loss of innocence entailed in recognizing this doctrinal dilemma may, at least, constitute a step in the right direction

Neutralizing Grutter

Part I of this article argues that the Supreme Court lacks the institutional competence to formulate racial policy for the nation, and highlights the tension that exists between the Court\u27s abstract preference for race neutrality and the concrete reality of contemporary race relations, in which dedicated efforts to promote racial balance offer the only meaningful hope of eliminating systemic discrimination. Part II discusses moderate strategies that can be used to deflect the impact of Grutter’s prohibition on racial balance, suggesting that racial balancing can be restructured in ways that the Supreme Court may view as constitutional. Part III discusses more radical strategies that can be used to promote racial balance, and advocates a direct confrontation with the institution of judicial review in the context of affirmative action. The article concludes that the political branches of government possess the power to overcome Supreme Court impediments to racial justice, and hopes that they also possess the will to exercise that power

The Conscience of a Court

The author explains his conclusion that the Supreme Court, as a matter of conscience, considers racial discrimination to be good for America. That conclusion, he argues, offers the only plausible account of the Court\u27s repeated insistence on displacing populist efforts to promote racial equality with the Court\u27s own, more-regressive, version of expedient racial politics. Although the Court has had what is at best a checkered history when called upon to adjudicate claims of racial injustice, until now, the contemporary Court might arguably have been accorded the benefit of the doubt. But after its five-to-four ruling in the 2007 Resegregation case, the need to acknowledge the influence of intentional discrimination on the Court\u27s racial decisions seems inescapable. In part I of this article the author discusses the Resegregation case (parents involved in Community Schools v. Seatle School District No. 1) and describes how difficult it is to view that case as anything other than a deliberately disingenuous distortion of Brown v. Board of Education. In part II he describes Krugman\u27s account of the ways in which movement conservatism has enlisted tacit appeals to white racial prejudice as a strategy for prompting white middle-class citizens to vote in ways that are consistent with the interests of the rich rather than the interests of the middle class. Part III describes the author\u27s view of the interaction between movement conservatism and Supreme Court constitutional hegemony, arguing that this interaction creates a judicial plutocracy that can use race to advance the political agenda of the wealthy. The article concludes by expressing the hope that the Supreme Court so overplayed its hand in the Resegregation case that the Court will no longer be able to pass off its conservative racial agenda as the product of detached constitutional exposition. However, the author states that he offers this conclusion with a healthy dose of pessimism, rather than the sense of pragmatic anticipation

Pure Politics

The present Supreme Court has been noticeably unreceptive to legal claims asserted by racial minorities. Although it is always possible to articulate nonracial motives for the Court\u27s civil rights decisions, the popular perception is that a politically conservative majority wishing to cut back on the protection minority interests receive at majority expense now dominates the Supreme Court. In reviewing the work of the Court during its 1988 Term, The United States Law Week reported that [a] series of civil rights decisions by a conservative majority of the U.S. Supreme Court making it easier to challenge affirmative action programs and more difficult to establish claims of employment discrimination highlighted the 1988-89 term\u27s labor and employment cases. U.S. Law Week went on to cite seven decisions handed down that Term that adversely affected minority interests