Racial Transitional Justice in the United States

For years, the United States government has endorsed transitional justice approaches abroad while ignoring the need for transitional justice at home. Recently, racial justice uprisings have shifted U.S.-based discussions of transitional justice, from gazing outward toward the international community to attending to the legacies of slavery, segregation, and white supremacy at home. This chapter demonstrates that the centuries-long oppression of Black Americans is precisely the kind of massive human rights violation that necessitates a systematic transitional justice response. Using historical, legal, and comparative analyses, it reveals that the United States has employed its own versions of transitional justice mechanisms and debates without recognizing them as such. The author argues that Americans should not uncritically adopt transitional approaches from elsewhere, but that they should reckon with systemic racism, recognize that the United States is still ‘developing’ in this respect, and consider how transitional justice could be implemented in the American context

Racial Time

Racial time describes how inequality shapes people’s experiences and perceptions of time. This Article reviews the multidisciplinary literature on racial time and then demonstrates how Black activists have made claims about time that challenge prevailing norms. While white majorities often view racial justice measures as both too late and too soon, too fast and too long-lasting, Black activists remind us that justice measures are never “well timed” within hegemonic understandings of time. This Article ultimately argues that U.S. law embodies dominant interests in time. By inscribing dominant experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines for racial remedies and “neutral” time standards that disproportionately burden subordinated groups. Because the legal enactment of dominant time perpetuates structural inequalities, this Article urges U.S. legal actors to consider and incorporate subordinated perspectives on time. The Article concludes with a series of recommendations for centering these perspectives and rendering them intelligible and actionable in law

Racial Transition

The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely acknowledged and sometimes even denied. This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While Civil Rights era decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized “distancing” the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. By rereading opinions concerning school desegregation, voting rights, affirmative action, and disparate impact in terms of reckoning and distancing, this Article provides key insights into racial equality law’s history as well as a glimpse into its likely future under the Roberts Court. Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis highlights how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited America’s transition from white supremacy. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase. As protestors demand a reckoning with America’s legacies of racism, the Roberts Court appears poised to leave the past behind. A distancing jurisprudence limits not just what the Court sees as constitutionally required, but what it sees as constitutionally permissible in the pursuit of transition. This Article considers how advocates can seek to reorient race jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means