Excerpted From: Yuvraj Joshi, Racial Justice and Peace, 110 Georgetown Law Journal 1325 (June, 2022) (471 Footnotes) (Full Document)


yuvraj joshiQuestions of justice and peace are entangled in conversations about social unrest. In June 2020, an estimated 15 to 26 million Americans took to the streets over the killings of Breonna Taylor, Tony McDade, George Floyd, Ahmaud Arbery, and countless other Black people. Protestors chanting “No Justice! No Peace!”--a rallying cry for racial justice since the 1980s a reckoning with white supremacy in the United States. These protestors were overwhelmingly peaceful in the face of brutal responses by police and white supremacist militias. Despite this, the Trump Administration dismissed their justice-seeking demands on the basis that protestors were violent disruptors of peace in “anarchist jurisdictions.”

These competing perspectives on justice and peace are part of a long American tradition. Throughout history, racial equality advocates have linked justice with peace, in part to counter claims that equality should be limited in order to preserve tranquility, stability, and social harmony. The Supreme Court has vacillated between these competing claims in cases ranging from Dred Scott v. Sandford to Brown v. Board of Education. Yet, although considerations of justice and peace permeate American legal discourse, American legal scholarship lacks the conceptual and analytical tools to fully grapple with them, tools which this Article offers.

This Article reframes racial equality debates as debates over racial justice and peace. It surfaces legal claims that address the relationship between ameliorating racial inequality and achieving peace, which it calls “peace-justice claims.” Using unpublished archival documents, the Article tells the story of how Americans embroiled in early desegregation debates sought competing visions of peace that either included or excluded justice. It then explains how the Supreme Court arbitrated those claims to promote integration despite massive resistance. The Article also traces how those claims have evolved and how an increasingly reactionary Court has used peace and justice considerations to limit rather than advance minority rights. This analysis shows that intertwined arguments about justice and peace, not just equality and dignity, lie at the heart of equal protection doctrine.

Expanding the scope of legal actors beyond lawyers and judges, this analysis of peace-justice claims contributes to what Risa Goluboff calls the “new civil rights history.” By using sources of both legal and social history to capture the claims of policymakers, social activists, and lay people, this Article adopts “an expansive approach to the cast of historical actors, the arenas in which they acted, the types of sources that can provide information about them, and the questions one might ask about the past.” Such an approach reveals both the overlaps and the tensions between the peace-justice claims of ordinary people and legal doctrine as developed by courts and “opens up space for alternative conceptions” of the peace-justice nexus.

This attention to peace-justice considerations also places the United States in a global conversation about “transitional justice.” This Article is one in a series of papers examining Americanracial justice issues from an international transitional justice perspective. Although societies transitioning from oppressive pasts require both peace and justice, these values sometimes appear in tension, leading to what is internationally known as the “peace versus justice dilemma.” The dilemma arises when societies face choices between short-term peace and stability and the pursuit of long-term justice. Viewing American legal cases as sites of this dilemma draws attention to the particular ways that courts define and prioritize peace and justice.

To demonstrate how peace-justice concerns permeate the law, this Article proceeds in four parts. Part I first describes how international transitional justice theory can elucidate American racial justice debates. It contemplates the “peace versus justice dilemma” and the differences between “negative” and “positive” peace, which are frames used throughout this Article to analyze peace-justice claims in the United States. Furthermore, it explores a critical strand of transitional justice theory which cautions against ignoring the justice claims of disenfranchised groups and endlessly delaying justice for a temporary peace--lessons which have particular relevance for the United States.

Part I then demonstrates how American racial justice advocates from the Civil Rights Era to the present day have linked their visions of justice with peace. It studies previously uncited archival materials alongside the public speeches and writings of three civil rights leaders: Dr. Martin Luther King, Jr., Bayard Rustin, and A. Philip Randolph. Pairing these historical records with national and local reporting of recent antiracism protests highlights that Black activists have made peace-justice claims for decades. It further points to the need for including Black activist voices in legal discourse. These insights from transitional justice theory and racial justice movements lay the foundation for the legal analysis that follows in Part II.

Part II examines Cooper v. Aaron, a 1958 desegregation case, as perhaps the Supreme Court's most significant judgment about racial justice and peace. Drawing on archival documents, this Part surfaces peace-justice claims made by both integrationists and segregationists following Brown v. Board of Education and throughout the Little Rock Crisis of 1957. Through a close reading of the court filings and various opinions in the Cooper v. Aaron litigation, Part II shows how the Supreme Court was invited to address a version of the peace versus justice dilemma. Although the Court tackled the dilemma decisively, it did so in a narrow manner.

Cooper v. Aaron held that Arkansas state officials, who had refused to abide by Brown v. Board of Education, must begin desegregating the state's public schools. Rejecting a school board's proposal to reverse and postpone integration in order to maintain “public peace,” the Court concluded that “law and order are not here to be preserved by depriving the Negro children of their constitutional rights.” However, whereas many civil rights activists saw integration as a means to a more just and enduring peace, Cooper adopted a limited peace-justice analysis. While the Court rejected white hostility as a legitimate basis for denying the constitutional rights of Black people, it stopped short of recognizing minority frustration as justification for safeguarding those rights. Had the Court accomplished the latter, equal protection law might have evolved differently. This account of Cooper v. Aaron attempts not only to contribute to the historical record but also to elucidate the present social unrest and its relationship to the law.

Part III extends the analysis beyond Cooper v. Aaron to more recent racial inclusion cases in which claims to peace and justice have arisen. This analysis reveals that Americans continue to call upon courts to interpret the Constitution with attention to peace and justice considerations, with markedly different results. Whereas white parents' claims that school integration would harm their children and threaten racial harmony failed to prevail in 1957, similar claims made fifty years later have found a more receptive audience. Cases such as Parents Involved v. Seattle have departed from Cooper, as a more reactionary Court now curtails minority rights to preserve racial harmony.

Part III considers the limitations of this more reactionary approach to preserving racial harmony and what it would mean for the law to facilitate a more peaceful and just political order. While the post-Cooper Court has invoked white resentment as a valid reason to limit minority-protective interpretations of the Constitution, it has ignored the exclusion and estrangement of racial minorities as a reason to expand minority-protective interpretations. More fundamentally, the Court has prioritized a negative peace based on the suppression of social conflict over a positive peace grounded in the pursuit of social justice. In slowing the pace of racial progress in the name of stability and harmony, the Court has acted so regressively that it has incentivized excluded minorities to turn away from the legal system and take to the streets, thus threatening the very peace it claims to protect. In this way, Supreme Court jurisprudence actually works to undermine the values it purports to uphold.

Proposing “No Justice! No Peace!” as an urgent corrective to the law, Part IV discusses four areas where jurisprudence could be more attuned to racial justice concerns and more conducive to the pursuit of a positive peace: affirmative action, voting rights, the First Amendment, and the Fourth Amendment. Given the Roberts Court's unpromising record on racial justice issues, Part IV also highlights some non-Court-centered paths to positive peace. The analysis developed here could also be extended to a wider range of contexts in which claims to peace and justice arise, including gender and LGBTQt equality.

This Article concludes that recent antiracism protests should lead us to reconsider the peace-justice compromises of prior decades. As American institutions continue to grapple with peace versus justice dilemmas, these protests present openings for prioritizing minority concerns and promoting a justice-based peace.

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“No Justice, No Peace”

The Preamble to the United States Constitution attests to the nation's aspirations to “establish Justice” and “insure domestic Tranquility.” Yet, laws and legal processes may have continually kept justice and tranquility out of reach by prioritizing an illusory negative peace over an enduring positive peace. In her inaugural poem, poet Amanda Gorman recited the reasons why this approach has been flawed: “We've learned that quiet isn't always peace, and the norms and notions of what 'just’ is, isn't always justice.”

In the wake of the largest racial justice protests in America's history, how will leaders and judges respond? Will they finally begin ameliorating racial stratification in order to alleviate racial strife or will they choose to “face another long, hot summer”? As the United States continues to struggle with the perpetuation of systemic racism, courts and other institutions will face versions of the peace versus justice dilemma as well as competing peace-justice claims in various contexts. Recurring antiracism protests should lead them toward prioritizing minority concerns and a justice-based peace.

Fellow, Harvard Carr Center for Human Rights; Faculty Affiliate, UCLA Promise Institute for Human Rights; Assistant Professor of Law, University of British Columbia Allard School of Law; J.S.D., Yale Law School.