Wednesday, June 20, 2018

Barbara J. Flagg

Excerpted from:  Barbara J. Flagg, "And Grace Will Lead Me Home": The Case for Judicial Race Activism , 4 Alabama Civil Rights & Civil Liberties Law Review 103-132 (2013) (74 Footnotes)



Barbara FlaggRace inequality persists in the United States. We see it everywhere—in wealth, income, and health disparities; in unequal access to resources such as housing and education; in elevated rates of incarceration for nonwhites; in every dimension of life. Accompanying, underlying, and perhaps contributing to the material and resource inequalities, there also is a racial status hierarchy: it still is better to be white in America than to bear any other ascribed racial identity. "Racism" in this sense—the dignitary significance of race—remains a pervasive fact in our society.

However, our legal culture incorporates a significant degree of resistance to redistribution, including resistance to racial redistribution. At least one strand of legal thought sees it as inappropriate for law to engage, consciously or otherwise, in reconfiguring the extra-legal status quo. As applied to race, this emerges as a view that opposes remediation of racial inequality other than that clearly created by the law itself. From this perspective, racial inequality deemed to originate outside the realm of law is not a problem law is designed to address.

The underlying premise of this Article is that this anti-race-redistributive view of law is simply wrong. It's wrong because racial inequality is morally wrong. It's wrong to assign to law no role in inequality's remediation because law has been a very significant player in making racial matters what they are today. And even if that were not the case, it would be wrong not to do what can be done about race inequality regardless of its cause or source. Law can and should take responsibility for race remediation, period.

However, this is not a moral treatise; its specific topic is what judges can do to address race inequality. Clearly, one of the most prominent manifestations of law's anti-redistributive aspect is the charge of "judicial activism." It is said that when judges (especially federal judges) interpret the law (especially the U.S. Constitution) in expansive ways (often meaning ones with which the critic does not agree) they are acting inappropriately. ""Judicial activism" is a popular, if sometimes poorly articulated, target for politicians, but it also comes in for a good deal of criticism in the legal profession generally. Its contrary, "judicial restraint," situates judges, and through them the law, in a proper, non-redistributive stance.

These terms likely have as many meanings as people who deploy them. For the purposes of this Article, I will adopt the definitions that follow and distinguish two pairs of terms: judicial role activism and restraint, and judicial social activism and restraint. "Judicial role activism" will refer to the "counter-majoritarian difficulty"; it will be used to describe circumstances in which a court invalidates a legislative or executive act on grounds other than a clear command of a superseding legal authority, such as the United States Constitution. Here the problem, if there is one, lies in role violation—the activist judge is said to be "legislating" from the bench. "Judicial social activism" will describe circumstances in which a judicial decision has the effect of altering an existing set of social policies or norms; "judicial social restraint" refers to an approach having consequences that maintain or reinforce existing social norms and practices. When "judicial social activism" is used pejoratively, it denotes a substantive transgression rather than a role-related one. The universes these pairs of terms describe may overlap, but they are not coextensive.

Given these definitions, "judicial race activism and restraint" are sub-categories that fall under the headings of judicial social activism and restraint. A race activist judge would be one who issues decisions having the effect of altering the racial status quo in the larger society; a racially restrained *105 judge issues decisions that do not upset the existing racial distribution of goods, power, or privilege. It is the thesis of this Article that there is no case to be made for judicial racial restraint so defined, and that judges can and ought to be race activist even if, in some instances, their decisions might be regarded as judicially role activist as well.

The Article proceeds as follows. Part I develops the proposition that a dignitary racial hierarchy persists in America, taking as its point of departure Gunnar Myrdal's well-known analysis of white Americans' attitudes regarding race in the 1940s. In Part I.A., I set forth the concepts of white dignitary privilege and color stigmatization as a framework for understanding this dignitary hierarchy. Part I.B. looks to social science as well as to everyday experience as sources of evidence that color stigmatization and white dignitary privilege indeed persist. This Part concludes that whiteness remains the preferred racial identity in America, cultural norms of racial egalitarianism notwithstanding.

Part II turns to an examination of what the law might do to combat dignitary racial hierarchy. Part II.A. describes the ways in which race and the law are intertwined, seeking to rebut the possible contention that the public (legal) and private realms are separate with regard to race. Part II.B. examines the ways existing equal protection law sustains white dignitary privilege and contends that law could avoid doing so. Finally, Part II.C. argues that judges ought to be "activist" on matters of race: there is no case to be made for judicial restraint in this realm.

In many respects, we have come a long way since the era of Jim Crow. It is no longer acceptable in most white circles overtly to express sentiments of white supremacy. But whites remain attached to a subtle and culture-borne sense of superiority vis-à-vis people of color. The law, and the judges who interpret and apply it, have played an important role in the construction of race and its social meanings, and they have an equally important part to play in effectuating racial progress. It is the contention of this Article that no principle of judicial restraint is available to justify hesitation in that regard.

* * *

The American Dilemma has not vanished; it has not even changed very much. Certainly there have been incremental improvements in the material circumstances of black people relative to Gunnar Myrdal's time and perhaps incremental improvements in dignitary status as well. But it still is better to be white in America than to be a person of color, as a matter of dignitary status, and thus it still is true that whites harbor deeply conflicted attitudes about race. Racial hierarchy is as much a constituent element of our culture as is racial egalitarianism.

The law, and the way judges interpret and apply it, is one important realm in which the ongoing Dilemma both manifests itself and is sustained. The fundamental guarantee of racial equality, the Fourteenth Amendment's Equal Protection Clause, has become through judicial interpretation a significant vehicle for the maintenance of white dignitary supremacy. But this legal regime is not justified as a matter of substantive law, nor by principles of judicial restraint. Judges ought to become race activists.

Professor of Law, Washington University School of Law.

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