Excerpted From: Michele Goodwin, Complicit Bias and the Supreme Court, 136 Harvard Law Review Forum 119 (December, 2022) (295 Footnotes) (Full Document)


micheleGoodwin.jpegEven as judges and courts serve as important safeguards and guardians against state and federal enforcement of unjust, harmful, and unconstitutional laws and discriminatory policies, they too may be fallible, weak in judgement and character, personally and professionally indifferent to systemic injustice, or corruptible. As history demonstrates, judges may be complicit in perpetuating harms or furthering discrimination against vulnerable people, including racial minorities, women, individuals with disabilities, and people who identify as LGBTQ. In other words, judges may possess cognitive awareness of a past or present harm against a vulnerable group and yet refuse to intervene to avert the continuance of harm or discrimination.

Judges may also refuse to acknowledge glaring injustices against vulnerable groups, denying appropriate relief related to past, ongoing, or future harms. Judges may inflict further harm through this purposeful inaction or silence. Ironically, legal scholarship generally sidesteps directly naming and developing theory to address these concerns.

As noted by Professor Jerry Kang: “[T]here is no inherent reason to think that judges are immune from implicit biases.” Highly visible United States Supreme Court cases, such as Dred Scott v. Sandford, Buck v. Bell, Korematsu v. United States, Plessy v. Ferguson, and Bowers v. Hardwick, among others, clarify this point. Judges are not immune to complicit, implicit, or explicit biases in the adjudicative process. The judicial process may be corrupted by partisanship and affected by external political or associational pressures and influence. Even if the rule of law operates as a safety valve to protect rights, at times it too is leaky and unreliable. Moreover, while the scholarship on implicit and explicit biases remains important, too little has been expressed about judges' complicit biases. These biases may incline judges toward advancing particular principles or causes based on their religious, political, or other beliefs and affiliations. This may happen even if the result is or appears outcome determinative, infringes on established rights, or perpetuates discrimination.

This Response takes up those concerns, building on the theory of complicit bias. As used here, complicit bias is comprised of three potentially overlapping elements. First, complicit bias can be shown where the actor is aware of a past, present, or future harm and does not intercede, with apparent knowledge that the impact will prejudice another. Second, the perpetrator shows an inclination to protect an individual or group based on relationship, affinity, or group characteristics. Third, the individual or institution furthers the harm through silence and inaction. The essay analyzes complicit bias by addressing the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Professor Khiara Bridges observes in this year's Foreword, in the Supreme Court's 2021 Term, the valves broke: the Supreme Court's conservative majority declared stare decisis inconsequential and incompatible with its evolving and conflicting originalist frameworks. Notably inconsistent, and lacking uniformity or coherence among themselves, the Court's conservative originalists extended their solicitude to states hungry to dismantle reproductive freedom. Justice Thomas warned that his aim included all privacy protections save interracial marriage, a feature of the Court's protection that safeguards marriages relevant to his personal life. to Justice Thomas, “'substantive due process' is an oxymoron that 'lack[s] any basis in the Constitution,”’ and as such, “in future cases [the Court] should reconsider all of [its] substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Citing his concurrences as legal authority, Justice Thomas claimed that “any substantive due process decision is 'demonstrably erroneous.”’ He urged that the Court has “a duty to 'correct the error”’ established in more than 150 years of precedent. Despite tepid assurances from Justice Alito's majority opinion and Justice Kavanaugh's concurrence that other fundamental privacy protections such as contraception access and marriage equality remain protected, those guardrails are unreliable at best. Unfortunately, the risks for women's health are not insignificant. Nor were they unforeseeable.

In her gripping Foreword, Bridges provides carefully argued insights. She reasons that the Court's willingness to see race discrimination is cabined to “objective” or “common sense” race discrimination cases and outcomes. As she explains it, the laws that undergird the “objective” or “common sense” cases of racism represent “'old-school’ racism” or artifacts from “the bad old days of the nation's formal racial caste system.” This “pre-Civil Rights Era racism” involved objective sadism, overt cruelties, and insidious violations of the legal order by self-avowed white supremacists and nationalists unabashed in decrying school integration, opposing interracial marriage, and supporting “separate but equal” laws. Bridges argues that this old-school archetype of racism problematically serves as the standard for the Roberts Court's interpretation or methodology for adjudicating contemporary claims of racial discrimination, which no longer resemble the types of overt racial discrimination inflicted by Commissioner Theophilus Eugene “Bull” Connor, Governor Orval Faubus, or Governor George Wallace. Worryingly, according to Bridges, if the old racism is the standard for understanding contemporary racism, then remediable racism will be confined to matters and frameworks of the old: “eugenics [,] ... genocide[,] ... racists disarming formerly enslaved black people to render them helpless and easily killed,” or similarly “a bigoted prosecutor trying to convict an innocent black man of murder.” expound upon Bridges's theory, in the Roberts Court, remediable racism takes the shape of “an extraordinary problem” under “exceptional conditions.” Yet this is relative. While Bridges very likely views the alarmingly high rates of Black maternal mortality and morbidity as an “extraordinary problem” occurring under “exceptional conditions,” at least five Justices ostensibly do not. Given this, what constitutes “extraordinary” and “exceptional” in the Roberts Court?

In the context of voting rights, the Roberts Court has recognized “literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like” as fitting into a remediable form of racial discrimination. Pre-Voting Rights Act physical abuses in the form of aggressive canines and law enforcement brandishing and using weapons against potential Black voters qualify as meeting the threshold of “extraordinary” and “exceptional.” At the same time, continued voter suppression--in the form of systemic and persistent partisan gerrymandering, racial gerrymandering, mandated payment of fines and fees as a condition to vote, deceptive robocalls, barriers to assistance, voter intimidation, strict voter identification laws, the broadscale and strategic closing of voter registration sites, ex-felon disenfranchisement laws, lack of early voting, and polling place relocations and reductions falls short. Seemingly, this is because contemporary discrimination may fall short of the pain still viscerally felt from “Bull” Connor's unleashing of fire hoses, dogs, and law enforcement on Black women and men. Shelby County v. Holder, the Court did not deny the existence of voter discrimination, but it was unwilling to acknowledge modern racism in voting laws. Notably, the Chief Justice in that majority opinion never used the term “racism” and barely referenced “racial discrimination” in a case where both were at the heart of the litigation before the Court. Perhaps this is because the Roberts Court has latched on to the belief that “[o]ur country has changed.” In other words, according to Bridges, “[t]he crux of the Roberts Court's apparent racial common sense is that racism against people of color is what racism looked like during the pre-Civil Rights Era--in the bad old days.” essay responds to Bridges's compelling Foreword. In the Foreword, she makes several key claims. First, Bridges argues that the Roberts Court “stands willing to interpret various parts of the Constitution--the Second Amendment, the Sixth Amendment, and the Due Process Clause of the Fourteenth Amendment-- in ways that are responsive to nonwhite people's racial injuries when they are reminiscent of the pre-Civil Rights Era.” As such, the Roberts Court, “among other things,” was willing to “save[] black people from a genocide that abortion providers were perpetrating, albeit unintentionally, through facially race-neutral laws that permit abortion.” Or, as in New York State Rifle & Pistol Ass'n v. Bruen, the Court was willing to strike down the “facially race-neutral licensing scheme at issue in the case in order to, among other things, be able to say that it saved black people from a racist disarmament that began at the end of Reconstruction.” That is, when the Court fixates on anti-Black racism looking like Governor Wallace physically blocking Vivian Malone and James Hood from entering the University of Alabama in order to prevent their integration of the university, it sophomorically ignores racism's adaptability and mutations. Like the virus that it is, racism produces variants, including some more infectious and perilous than others, often requiring new vaccines and remedies.

Second, Bridges argues the Court makes different demands of white litigants that claim racial discrimination than of nonwhites. She explains that “judicial responsiveness to white people's 'new’ racial injuries means that white people receive judicial and constitutional solicitude not afforded to nonwhite people.” Where nonwhite people must show Jim Crow-type overt conduct to successfully seek remedies for race discrimination, white petitioners need not show odious stereotypes, stigmas embedded in law, or vile and violent enforcement carried out by the government or its agents against them. As a result, she explains, “requiring nonwhite people's racial injuries to have a similarity to past techniques of racial disenfranchisement allows the Court to implicitly declare that racism against people of color is a thing of the past; it permits the Court to deny the existence and persistence of structural racism.” and most devastatingly, Bridges posits that “efforts to disrupt the systems and processes that have made it so that people of color are at the bottom of most measures of social well-being will not survive judicial review.” Bridges is not new to studying the law's negative externalities in the lives of poor, pregnant women. Across carefully researched books and copiously detailed law review articles, she time and again has urged centering the lives of Black and Brown women in discourse on reproductive health and rights and has argued for the use of a reproductive justice framework to analyze the law's failure to show solicitude toward low-income women of color. In her Foreword, Bridges expands on those intuitions and instincts to include a more generalizable critique and description of the Court's review of racial discrimination, a particularly relevant endeavor given the Court's recent Term. Accordingly, to Bridges, the Roberts Court shows its theory of racism, even while it claims to be “atheoretical” in its race jurisprudence. Bridges marks this as “theory masquerading as no-theory”--a theory she describes as both “incomplete” and “convenient.” How then does one make sense of the Court's methodology or theory of law? And is the Roberts Court unique in its masquerading? Is there a framework that might connect the Roberts Court to its predecessor Courts, which equally showed a lack of solicitude for the lives of women generally, and women of color particularly?

This essay characterizes the Court's grievously wrong rulings in its 2021 Term abortion cases as manifestations of complicit bias. It takes seriously an overlooked--even unnamed--phenomenology involving third parties who do not act when harms occur, even when they could do so or arguably have a duty to do so. It argues that in cases involving sex, race, and gender discrimination, action or inaction by third parties, including by courts, may cause harm. Furthermore, that action or inaction may be linked to personal or professional interest in, affinity toward, loyalty to, benefit from, or relationship to the perpetrator, which may be state legislatures as well as individuals.

This essay offers a new conceptual framework, namely “complicit bias,” to address circumstances wherein people fail to act--even people presumably of goodwill. This distinct conceptual framework complements and expands the recognized theoretical frames of implicit bias and explicit bias. It suggests that those useful and important frames fail to capture an important third rail. Unlike those who engage in implicit bias (being cognitively unaware of prejudiced thoughts and behaviors), individuals who engage in complicit bias are cognitively aware of the specific prejudice, discrimination, and injustice at issue. However, unlike actors engaged in explicit bias, the complicitly biased may not be engaged in purposeful acts to discriminate or harm. Rather, individuals or institutions that engage in complicit bias occupy a third category. They are those who fail to correct or acknowledge the discriminatory harms inflicted on vulnerable individuals despite awareness of the inappropriate, unethical, or illegal conduct.

This essay proceeds in three Parts. Part I briefly lays out the contours of complicit bias theory. Part II argues that complicit bias has been a pillar of American jurisprudence by tracing the longer arc of complicit bias in judicial decisionmaking. Part III turns to the real-world implications and impacts of judicial complicit bias. It offers an overview of the dangerous but predictable aftermath of the Supreme Court's decision in Dobbs. It asks: Why, with the unsurprising likelihood of pregnancy-related injuries and harms in the wake of abortions bans, did the Court accord such solicitude to Mississippi? The essay then concludes.

[. . .]

What explains enduring legacies of racial inequality that materialize across the lifespan in reproductive rights, education, employment, housing, and fundamental areas related to civil liberties and civil rights? What accounts for the persistence of arcane race or sex biases and stereotypes festering in law and society despite available information to dislodge them? And can constitutional law serve to resolve these types of challenges? One reasonable answer resides in the argument made by Professor Neil Komesar in Law's Limits regarding the inherent weaknesses in law and legal processes. Komesar compares the legal process to a “tiny engine” confronted by “increasing strains on both its substantive abilities and physical capacity.” Law can do only so much, and, ironically, the processes traditionally relied upon to settle legal disputes may actually be ill conceived and poorly structured to do so. argument, more specific to matters of civil rights and civil liberties and deployed by both segregationists and civil rights leaders during Jim Crow, is that law on its own--and constitutional law more specifically--may not be up to the task of changing hearts and minds. For the former, such arguments counseled against the enactment of civil rights legislation, and they urged courts against using their authority to strike down segregationist laws. In 1954, at the time of Brown, four states permitted racial segregation in schooling and seventeen states along with Washington, D.C., mandated racially segregated education. In fact, more states mandated racial segregation than forbade it. In such an atmosphere, changing laws presented less of a battle and fewer substantive obstacles than scrubbing from an American social consciousness centuries of bias and stereotype.

Thus, in Brown, when the Court explained, “[t]o separate [Black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” whose hearts and minds concerned the Court? Or needed retooling? To answer the question, the Court stated, “[s]egregation of white and colored children in public schools has a detrimental effect upon the colored children.” According to the Court, “the policy of separating the races is usually interpreted as denoting the inferiority of the negro group,” and because of this “sense of inferiority,” Black children's motivation to learn was stunted along with their “educational and mental development.” as Bridges argues that the Court is willing to remedy anti-Black racism in pre-Civil Rights Era form, much remains contested about Brown and the Court's unwillingness to recognize structural inequalities bounded in American law and white supremacy--including unequal housing, employment, and blatant racial discrimination in virtually all aspects of life--as that which harmed the psyche of Black children, not themselves. The much harder task before the Court was not speaking to the hearts and minds or attitudinal changes of Black children, but to those of white parents, lawmakers, school boards, and judges.

Nevertheless, even civil rights and civil liberties activists and movement leaders who relied on traditional constitutional arguments to dismantle unjust practices recognized the limits of constitutional law to reshape culture or change hearts and minds. To understand Brown as the case whose time had come in light of the moral urgency to end a form of racial apartheid embedded in American law would be to misunderstand geopolitical realities and the fact that “the national commitment to racial equality was always intertwined with Cold War considerations and thus highly opportunistic.” legal victories to strike down unjust laws served an expedient purpose for civil rights leaders too, even if it meant the persistence of harmful and unjust racial biases in American culture furthered by the complicity of the Supreme Court in perpetuating stereotypes against Black children.

Perhaps one of the more troubling answers to the enduring phenomenon of race and sex bias in law and society and the relative inability of constitutional law to serve as the primary or sole force in law to address those problems emanates from the Court itself and its complicated, and arguably weak, history in defending the interests of the most vulnerable. In 1883, merely a stone's throw away from the legalization of American slavery, the Court dismissed racial discrimination claims, explaining:

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. is, despite the striking down of “separate but equal laws” and seventeen years of the Warren Court, according to Dean Erwin Chemerinsky, “[t]he Court, overall, has done much more harm than good with regard to race.” The Court's nearly two decades of evaluating and striking down often bizarre, inane laws “cannot outweigh the horrendous ones in the century and a half before that or the troubling ones since.” 

Professor of Law, University of California, Irvine School of Law; Founding Director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine School of Law.