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

\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

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

Gerrymandering Justiciability

As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the interests of the white majority. And that appears to be what the Court is now doing again in allowing white Republicans to dilute the political power of minority Democrats. Part I of this Article describes the Supreme Court’s current justiciability rules for gerrymandering claims. Section I.A explains how the Court finds partisan gerrymandering claims to be nonjusticiable political questions. Section I.B explains how the Court finds racial gerrymandering claims to be justiciable. Part II inverts the Court’s justiciability rules, showing how they can be applied in a way that produces the opposite of the results that the Court found them to produce. Section II.A explains how partisan gerrymandering claims can be found justiciable. Section II.B explains how racial gerrymandering claims can be found nonjusticiable. Part III argues that the Court’s gerrymandered justiciability decisions create a sphere of unconstrained judicial discretion that the Court will end up exercising in a way that protects white electoral advantage from the threat of equalization through either partisan or racial gerrymandering. Section III.A argues that the Court’s decisions have the effect of diluting minority votes and reducing minority voting strength. Section III.B argues that such protection of white interests is consistent with the role that the Supreme Court has played throughout the history of race relations in the United States. The Article concludes that neither political nor judicial efforts are likely to secure electoral equality for either political or racial minorities, because the Supreme Court will not compel the mathematical proportionality that offers the only realistic hope of ever achieving the equality needed for genuine democratic self-governance

Whatever

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions that smolder beneath the concept of affirmative action into the more sanitized doctrinal issues that the Court has made relevant to its discussion of constitutionality, the author fears that we may have lost sight of what is really at stake. At bottom, the affirmative action debate is about our continuing cultural commitment to a long tradition of racial oppression. But by acquiescing in the Court’s effort to obscure that oppression with the patina of doctrine, we run the risk of offering analytical insights that may simply be beside the point

Disparate Impact

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of less fortunate racial minority group members in the United States. Part I of this essay discusses the claim that we have now become a post-racial society, arguing that this claim itself constitutes a form of systemic discrimination against racial minorities. Section I.A describes the history of Supreme Court involvement in the sacrifice of minority interests for the benefit of the white majority in order to establish a context in which the racial jurisprudence of the contemporary Supreme Court can be assessed. Section I.B describes how the contemporary Court has used post-racial assumptions to perpetuate discrimination against racial minorities in the name of protecting the equality interests of whites. Part II discusses the Supreme Court’s hostility to disparate impact claims. Section II.A describes how the Court rejected disparate impact claims under its constitutional equality jurisprudence. Section II.B describes how the Roberts Court is extending this hostility to the statutory disparate impact claims created by Congress in Title VII. Part III argues that the recognition of disparate impact claims is a sensible precommitment strategy for the resolution of the nation’s persistent racial discrimination problem. Section III.A argues that racial discrimination is so deeply embedded in United States culture that it cannot be eradicated through mere voluntary efforts to behave in nondiscriminatory ways. Section III.B argues that viewing racially disparate impact as sufficiently suspect to warrant a presumptive remedy would enable the culture to approximate the genuine racial equality that its ingrained racial attitudes have thus far precluded it from attaining. The Conclusion expresses the fear that Supreme Court jurisprudence will continue to reject disparate impact claims in the name of post-racialism precisely because the Court is one of the institutions on which the culture relies to perpetuate its systemic discrimination against racial minorities

Writing Off Race

Because the US Constitution says absolutely nothing about affirmative action, the Supreme Court should have absolutely nothing to say about it either. Rather, the political branches should set the nation\u27s affirmative action policy, and they should do so with political leadership provided by the President. Spann considers Pres Clinton\u27s record on affirmative action

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