Excerpted From:  David Simson, Most Favored Racial Hierarchy: The Ever-Evolving Ways of the Supreme Court's Superordination of Whiteness, 120 Michigan Law Review 1629 (June, 2022) (186 Footnotes) (Full Document)


DavidsimsonThis Article takes as its starting point that America's constitutional commitment to racial equality currently appears to be facing a “Second Redemption” is, a backlash reaction to progress in racial equality similar (though not identical) to that which developed after the Civil War and Reconstruction. As such, our current moment illustrates the claim long made by Critical Race Theory (CRT) scholars that the trajectory of America's racial equality progress is better described as a process of alternating cycles of reform and retrenchment, rather than as a more romantic story of continuous linear progress. One reason that retrenchment can continue to repeat itself is that the mechanisms of and the intellectual justifications for retrenchment continue *1631 to change and evolve in a process of “preservation-through-transformation.” In this process, the current justification and means for the continued subordination of historically subordinated groups are never quite the same as the previous ones and, in fact, often masquerade as egalitarian progress, permitting a kind of “plausible deniability” about the fact that longstanding social hierarchies persist and continue to be nurtured.

One major task for civil rights lawyering and scholarship is to continue to expose and challenge the evolving ways in which the most basic civil rights goals of equality, liberty, and justice for all are being undermined, to develop arguments for how those goals could be more effectively pursued, and to hold accountable those leaders and institutions who could change the status quo for the better but fail to do so. This is simultaneously an “old” and enduring vision of civil rights lawyering, and yet it must continuously revitalize itself as a “new” vision that is both attentive to preservation-through-transformation and decisive in criticizing and responding to its ever-evolving forms.

This Article aims to contribute to this task through a critical comparative analysis of both the recent history and likely future trajectory of the Supreme Court's constitutional jurisprudence in matters of race and religion. To date, constitutional law scholarship has only infrequently engaged in sustained comparative analysis of these two central areas of constitutional law. This Article argues that this oversight is problematic. It leaves comparatively unexplored important dimensions, and a new chapter, of the longstanding racial project through which constitutional law and the Supreme Court have contributed *1632 to the perpetuation of a basic social system structured by white supremacy. It also leaves comparatively unexplored potential ways of challenging this system and mobilizing against it.

With respect to new insights, a critical comparative analysis of race and religion jurisprudence uncovers new aspects of the ways in which the Court engages in what Reggie Oh has recently called the “racial superordination” of whiteness in the American racial hierarchy. As Oh suggests, white supremacy is maintained not only through the subordination of non-white groups (though it is certainly also maintained in this way) but also through the superordination of whiteness--meaning practices that reinforce the perceived superior status of white Americans and whiteness in American society and that help consolidate white control over political power and material resources. One way in which such superordination can proceed is by “prioritizing the *1633 interests of whites” in structuring legal doctrine. Applying this idea to race and religion jurisprudence, superordination of whiteness can occur internal to race jurisprudence, internal to religion jurisprudence, and across race and religion jurisprudence. This Article focuses predominantly on the last, cross-contextual dimension of superordination, which has so far received the least attention.

As Parts I and II describe, a critical comparative analysis of race and religion jurisprudence--what Russell Robinson has called “doctrinal intersectionality” that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize the interests of whiteness and set those interests as the normative baseline in both areas of constitutional law. This widening equality gap remains invisible if race and religion jurisprudence are analyzed, as they frequently are, in silos. But as Part II explores, it becomes visible through a comparison of the Court's recent trajectory in the Free Exercise Clause context, where the Court has increasingly moved toward an aggressive and religion-conscious “most favored nation” equality theory, with its trajectory in the equal protection context, where the Court's continued march toward mandating colorblindness is arguably moving toward something akin to a “least favored nation” equality theory for race and race consciousness. Plausible and persuasive arguments can be made that the most favored nation approach should also be applied to race. Doing so would provide more doctrinal space for racial equality-enhancing government programs and call into question deeply entrenched aspects of the Court's current affirmative action jurisprudence. The Court's refusal to even hint at the possibility *1634 of such an approach points to a racial project of superordinating the interests of white Americans to be constitutionally protected from race-conscious interference with their dominant position in the racial hierarchy over the application of consistent constitutional principles. This suspicion is further supported by the Court's selective application of the most favored nation theory even in the context of religion in ways that predominantly benefit the interests of white Americans.

Uncovering this cross-contextual superordination of whiteness shows that the Court's cramped racial equality jurisprudence is not merely an iteration of a generally cramped vision of constitutional equality protections--it is racially specific to the benefit of whites. The Court is innovating and strengthening constitutional equality protections for the religious (at least where those protections cover the interests of most religious white Americans). But it simultaneously refuses to extend those innovations to the race context where they would largely benefit communities of color--indeed, in this context, the Court is moving even further away from the implications of its equality innovations elsewhere. This is a racial project and ought to be discussed, analyzed, and criticized as such.

As I discuss in a brief conclusion, this point, in turn, connects the Article's doctrinal analysis to what it suggests about possible ways of mobilizing against this racial project. The Court's march toward a “colorblindness” approach to racial equality has been criticized extensively and persuasively on its own terms since at least the mid-1980s. And yet the Court seems poised to continue and finish its march, suggesting that the members of the Court's conservative majority are not willing to be persuaded (intellectually or ideologically) by those critiques in isolation. They have seemingly shown *1635 somewhat greater sensitivity to allegations that their decisions are ideologically or politically motivated. They have also shown greater willingness to explicitly take account of scholarship and activism advocating for greater equality protections in the field of law and religion. Could cross-contextual alliances of scholars and activists develop an anti-racist project that calls out the Court's equality inconsistencies and their negative racial hierarchy implications and demands harmonization in line with robust equality protections for all groups for whom the Constitution shows special solicitude? Would such a project make a difference? I don't want to be naïve about the likelihood of such a project or its prospects of success. But it seems worth attempting as one aspect of a determined challenge to the dangers of a Second Redemption.

[. . .]

“The interpretation of particular constitutional provisions ... must adapt to changes that occur elsewhere in the constitutional matrix. At a minimum, collateral changes raise important questions of interpretation.” The main purpose of this Article was to point out the troubling direction for racial equality progress that the Supreme Court's constitutional jurisprudence is taking with respect to the intersection of two deeply important aspects of social life in the United States--race and religion. From the standpoint of those who believe that racial equality continues to be more aspiration than reality--as evidenced by the dual pandemics of the COVID-19 virus that has exacerbated many pre-existing racial inequalities and of police brutality that continues to dehumanize communities of color, in particular the Black community does seem hard to avoid the conclusion that we are in the middle of what is at least an attempted “Second Redemption.” The Supreme Court is contributing to this Second Redemption through a practice of constitutional interpretation in the contexts of race and religion that this Article has described as the superordination of whiteness. This approach prioritizes the interests of whiteness, establishes them as the normative baseline that the Constitution ought to and will protect, and thereby contributes to the perpetuation of a racial hierarchy that is grounded in an ideology of white supremacy. We should reject this trajectory, and forcefully so.

Just as the rise of the MFN approach in the context of constitutional religious equality rights but not in the context of racial equality rights illustrates novel ways in which the superordination of whiteness and the process of preservation-through-transformation proceed, it might also help to point toward new ways in which we might attempt to challenge this trajectory. One such way might be to intensify the conversations and collaborations between scholars of race and religion who agree that the Court's current trajectory, when viewed cross-contextually across the areas of both race and religion, is illegitimate. Religion scholars currently appear to have an increasing intellectual influence on a majority of the Court, and the Court has cited them in implementing the MFN approach discussed in Part I. Those same religion scholars tend to not discuss, or to tentatively reject, that the MFN approach also supports a more affirmative stance toward race-conscious approaches to racial equality, as long proposed by racial equality scholars, who the Supreme Court very much does not cite. If scholars were willing to coalesce around scholarship that, through doctrinal intersectionality, aims to uncover the egalitarian potential of both lines of constitutional jurisprudence, might it make a difference? Might it convince the Court that, properly conceived, an MFN approach *1665 to questions of racial equality is appropriate and calls for a more context-sensitive approach to the question of race consciousness as well? Perhaps, and I believe this should be attempted.

Separately, President Biden created a commission on the study of the Supreme Court, some members of which have sharply criticized the Supreme Court for being an institution that predominantly protects dominant interests through its exercise of judicial review. The fact that the Court is engaging in the superordination of whiteness in various contexts can and should strengthen such critiques of the current practices of the Court and flow into proposals for how to reform the institution.

Finally, from the standpoint of public opposition to the Court's problematic practices, one goal of exposing the Court's superordination of whiteness is to show that the fates of constitutionally protected groups and interests are linked in important ways. Especially for white Christians, who have long been accustomed to setting the standard for moral authority in the United States, it will be important not to take a myopic view that is focused on legal victories for narrowly defined religious interests. Instead, white Christians ought to focus on the overarching principles of equality and liberty that underwrite constitutional protections for their own interests and that are constitutionally due not just to them but also to those groups who are subordinated on the basis of both race and religion. Anthea Butler puts the question bluntly in her recent book: “Whom will you serve?” She notes that even if evangelicals get everything they currently say they want, racism will not be addressed. She thus calls on evangelicals to take a broader view of their social obligations. Perhaps exposing the Court's racial project of superordinating whiteness, as illustrated by the Court refusing to provide the same equality protections to those who are disadvantaged as a function of race as it provides to those who would otherwise be disadvantaged as a function of their religion, will help convince some to speak out and act against structural racism in whichever way might be accessible to them. If the painful lessons of the First Redemption tell us anything, those of us who oppose the Second Redemption will need all the help we can get.

Acting Assistant Professor of Lawyering, New York University School of Law and incoming Associate Professor of Law, New York Law School.