Racial Exhaustion

This Article examines historical and contemporary race discourse contained in political and juridical sources in order to illustrate how opponents to racial egalitarian measures have frequently contested such policies on the grounds that they are redundant, unnecessary, or too burdensome or taxing. Racial exhaustion rhetoric has operated as a persistent discursive instrument utilized to contest claims of racial injustice and to resist the enactment of racial egalitarian legislation. Racial exhaustion rhetoric has enjoyed particular force during and immediately following periods of mass political mobilization by antiracist social movements and institutional political actors, and it retains potency in contemporary racial discourse. Although this Article conducts a cross-historical analysis of debates over racial justice policy, it does not rest on the idea that racial discourse has retained a static quality over time. Indeed, innumerable historical factors have contributed both to the evolution of racial status and to the content of race-equality discourse. Despite the contingent nature of language and identity, however, opponents to racial equality measures have historically discounted the ongoing relevance of race and have depicted demands for civil rights remedies as vexatious and injurious to whites. The pervasive deployment of this narrative has important implications for participants in antiracist social movements, civil rights scholars and attorneys, and judicial scholars who wish to understand the impact of political rhetoric upon doctrine

Dissecting Axes of Subordination: The Need for a Structural Analysis

Proceedings of a criminal trial in Dallas, Texas, demonstrate the vulnerability of LGBT individuals to judicial bias. Although the jury convicted the defendant of murdering two gay males, the judge explained his light sentence: I put prostitutes and gays at about the same level, and I\u27d be hard put to give somebody life for killing a prostitute . . . had [the victims] not been out there trying to spread AIDS, they\u27d still be alive today . . . These two guys that got killed wouldn\u27t have been killed if they hadn\u27t been cruising the streets picking up teen-age boys . . . I don\u27t care much for queers cruising the streets. I\u27ve got a teen-age boy. An investigation by the Texas State Commission on Judicial Conduct cleared the judge of any wrongdoing. This Article analyzes the problem of judicial bias as a structural matter, and it encourages legal scholars to resist treating it as an atomistic or individualized phenomenon. This Article addresses two important issues related to the task of unveiling and challenging the institutional nature of anti-gay bias. In Part II, this Article explains in greater detail how a structural analysis of judicial bias can lead to a richer understanding of subordination by uncovering the subtle, hidden, and ideological roots and manifestations of oppression. Part III argues that law and sexuality scholars must conduct a multidimensional reading of judicial heterosexism- that is, in order to appreciate fully the structural dimensions of judicial bias against gay, lesbian, bisexual, and transgender individuals, we must recognize that this bias exists as part of a larger system of domination along race, gender, and class lines

The \u3ci\u3eMajoritarian\u3c/i\u3e Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court\u27s decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view the decisions as examples of the Court protecting and advancing the interests of disadvantaged groups, while conservatives, apparently accepting this portrayal, argue that these cases demonstrate that the Court has aligned itself with leftist and elitist interests, rendering its opinions incongruent with majoritarian public thought. This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, rather than dismantle, social subordination. Only a sober reading of these cases can permit equality theorists to place the decisions within a broader movement that contests narrow conceptions of legal and social equality. This Article explicates my thesis in three parts. Part I examines the body of works by constitutional theorists, critical legal scholars, and political scientists on judicial majoritarianism in order to construct an analytical framework for considering how Court doctrine reinforces dominant interests. The purpose of Part I is not to determine whether or not (or under what circumstances) the Court should be countermajoritarian, but instead to analyze substantial research that complicates, if not refutes, traditional understanding of the Court as undemocratic. Part II applies the analytical framework developed in Part I to Lawrence, Gratz, and Grutter and concludes that, contrary to popular portrayals, these decisions fortify, rather than aim to dismantle, social hierarchies of race, sexuality, class, and gender. Furthermore, Part II demonstrates that the Court explicitly grounds its rulings in these cases upon democratic considerations, thus lending support to arguments that contest countermajoritarian discourse. Part III utilizes social movement theory to explain the enthusiastic reaction of liberals to Lawrence, Gratz, and Grutter. Part III argues that civil rights organizations enthusiastically received these cases, despite their limitations, because for years these groups have conducted litigation and activism within a conservative legal framework that generally opposes affirmative action and gay rights agendas. Part III then offers strategic considerations for legal theorists and activists who seek progressive legal change before a majoritarian Court

Majority Politics and Race Based Remedies

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination but embraces affirmative action for diversity purposes. Yet, as ongoing litigation demonstrates, the countermovements to antiracism that oppose affirmative action seek to dismantle race conscious state action altogether, and given recent personnel changes on the Court, this more palatable justification for affirmative action, having escaped judicial invalidation in Grutter v Bolinger, faces judicial invalidation once again. Part I highlights the Court\u27s opposition to racial remedies and its acceptance of diversity in affirmative action litigation. Part I also discusses developments in judicial remedies law as an additional basis for demonstrating the Court\u27s hostility to racial redress and its alignment with mainstream political forces. Part II discusses the response of contemporary antiracist actors to judicial conservatives-particularly the proposals by several Critical Race Theorists that seek to de-emphasize race as a vehicle for navigating the political and legal landscape that opposes race-based remedies. Part III offers direction for future antiracist advocacy in a conservative political opportunity structure

Not without Political Power: Gays and Lesbians, Equal Protection and the Suspect Class Doctrine

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs. A growing body of and federal and state-court precedent addresses the flaws of the Court\u27s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and precedent that criticizes the Supreme Court\u27s errors. This Article offers two alternatives approaches that could inform a new theory of equal protection for all subordinate classes

Dissecting Axes of Subordination: The Need for A Structural Analysis

Proceedings of a criminal trial in Dallas, Texas, demonstrate the vulnerability of LGBT individuals to judicial bias. Although the jury convicted the defendant of murdering two gay males, the judge explained his light sentence: I put prostitutes and gays at about the same level, and I\u27d be hard put to give somebody life for killing a prostitute . . . had [the victims] not been out there trying to spread AIDS, they\u27d still be alive today . . . These two guys that got killed wouldn\u27t have been killed if they hadn\u27t been cruising the streets picking up teen-age boys . . . I don\u27t care much for queers cruising the streets. I\u27ve got a teen-age boy. An investigation by the Texas State Commission on Judicial Conduct cleared the judge of any wrongdoing. This Article analyzes the problem of judicial bias as a structural matter, and it encourages legal scholars to resist treating it as an atomistic or individualized phenomenon. This Article addresses two important issues related to the task of unveiling and challenging the institutional nature of anti-gay bias. In Part II, this Article explains in greater detail how a structural analysis of judicial bias can lead to a richer understanding of subordination by uncovering the subtle, hidden, and ideological roots and manifestations of oppression. Part III argues that law and sexuality scholars must conduct a multidimensional reading of judicial heterosexism- that is, in order to appreciate fully the structural dimensions of judicial bias against gay, lesbian, bisexual, and transgender individuals, we must recognize that this bias exists as part of a larger system of domination along race, gender, and class lines

Preventing Balkanization or Facilitating Racial Domination: A Critique of the New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.”Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some theorists have defended the Court’s discarding of group-based equal protection. They argue that social justice advocates should pursue redress for vulnerable groups by asserting dignity-based liberty claims under the Due Process Clause. In a widely cited article, Professor Kenji Yoshino argues, in fact, that dignity is the “New Equal Protection.” Applying insights from “social capital theory,” Yoshino contends that group-based equal protection causes “pluralism anxiety” — or a fear of “balkanization” among the justices. Dignity arguments, by contrast, do not present such concerns because they rest on appeals to universal justice.This Article contests the view that the Court should discontinue class-based equal protection in order to maintain social cohesion. Leading social capital theorists find that multiculturalism, though temporarily divisive (if at all), provides many long-term benefits. Also, numerous social psychology studies find that racial and ethnic inequality cause far more social disruption than group-based identities. This empirical research also demonstrates that the Court’s equality doctrine mirrors the views regarding race relations held by most whites, while contradicting the perspectives of most persons of color. The enforcement of white majoritarian viewpoints should not serve as the foundation for an equality doctrine. Anti-subordination theory, by contrast, would provide more egalitarian outcomes and should inform Court doctrine

Sexual Politics and Social Change

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the political opportunity for the Lawrence ruling and made the opinion relatively safe . Currently, GLBT rights groups are following a similar strategy with respect to the pursuit of same-sex marriage. This Article evaluates that strategy and considers whether political opportunities for reform in GLBT rights exist on the national stage