Become a Patron! 



Excerpted From: Cedric Merlin Powell, The Rhetorical Allure of Post-racial Process Discourse and the Democratic Myth, 2018 Utah Law Review 523 (2018) (391 Footnotes) (Full Document)


Cedric Merlin PowellWith devastating ease, the Roberts Court has pronounced a series of decisions that mark a new era in the Court's race jurisprudence--post-racial constitutionalism. Schuette v. Coalition to Defend Affirmative Action is the latest incarnation of this doctrinal posture, but there is something discernibly distinct at work here. The Court is now actively engaged in promoting a post-racial view of society that embraces white privilege and ignores structural inequality. "In this age of covert racism, the conception of racism must change to capture its clandestine nature. The majority of society, which the Supreme Court reflects, misperceives racism as merely hateful individuals engaging in overtly racist acts." Advancing formalism and post-racialism, the Court is thoroughly engaged in constitutionalizing inequality through post-racial proceduralism. Through post- racial proceduralism, this Article locates a central analytical feature of the Court's post-racial constitutionalism. The Court constructs a series of doctrinal rules and neutral rationales that make it virtually impossible to prove structural inequality without proof of particularized discrimination. Schuette adds another component to post-racial proceduralism--it endorses the power of the electorate to determine what antisubordination means under the Fourteenth Amendment and whether anti-discrimination laws, in general, are necessary.

Schuette did not garner much public attention because it ostensibly maintained the status quo, it did not explicitly overrule the diversity principle set out in Grutter v. Bollinger, nor did it address the constitutionality of race-conscious remedies. The Court fashioned its decision as one about the democratic process, and how it should function. Inevitably, the Court emphasizes process values over substantive constitutional rights; it minimizes the present day effects of past discrimination; and posits neutral process rhetoric to rationalize a fundamental restructuring of the political process, which ultimately ensures that any significant progress on racial inclusion will be undermined.

All of the democratic tropes espoused by the Court--the First Amendment values of debate and an enlightened citizenry; the states as laboratories of democracy and experimentation; and access to an open and neutral political process the wholesale dismantling of race-conscious remedial approaches to the eradication of structural exclusion. It is hard to argue with voters having their say in the political marketplace; however, in Schuette, the Court permitted the Michigan voters to determine the substantive contours of the Fourteenth Amendment.

Justice Kennedy's Schuette plurality opinion is premised on the fact that there is no intentional discrimination on the part of the state; thus, there is no remediable injury. Accordingly, since race-conscious remedies in Michigan served their purpose, at least in the minds of the electorate, it is appropriate to advance a voter initiative to prohibit race-conscious remedies and have it formalized by the legislature in an amendment to the Michigan Constitution. In this vein, the voters are simply "constitutionalizing" the post-racial neutrality embraced by the Court in its opinions. Significantly, six justices, despite their distinct doctrinal interpretations of the political process doctrine, all presume that there is no particularized discrimination by the state; this leads to the conclusion that the political process is fair and open. This is the Rhetorical Allure of Post-Racial Process Discourse and the Democratic Myth.

As the title of this Article suggests, the Court uniformly advances process-based values, but Schuette represents a fundamental reinterpretation of the Court's seminal political process decisions and further reinforces the Roberts Court's post-racial constitutionalism, proceduralism, and determinism. Schuette is the embodiment of the Court's post-racial process discourse: it specifically references and advances post-racial constitutionalism; it elevates process-based proceduralism over substantive constitutional rights; and it ensures that any race-conscious approach will be presumptively unconstitutional.

Constructing a new definition of equality under the Fourteenth Amendment, the Court actually encourages reverse discrimination suits (or voter initiatives) based on the "injury" of race consciousness. Schuette pushes this proposition even further by constitutionalizing mere access to the political process as a normative constitutional principle, and embracing a contrived democratic model that permits the majoritarian electorate to determine how equal protection is defined in our polity. Where there is no clearly identifiable discrimination, states are free to pull back from overly "expansive" race-conscious remedial approaches to eradicate inequality. This is a defining feature of the Court's formalist conception of equality; it is also a recipe for retrogression.

The doctrinal and conceptual linchpin of post-racial constitutionalism is post-racial proceduralism, which functions as a neutral rationale for structural inequality. "From its colorblind jurisprudence to its post-racial jurisprudence, the Court consistently articulates a process view of polity so that substantive considerations of race are ignored." This is why post-racial process discourse is so alluring--it privileges the democratic myth of access while simultaneously offering a rationale for the enduring features of the present day effects of past discrimination:

[B]ecause the [political] system is generally well-functioning, individuals can organize themselves into groups to advance their discrete interests. So, any systemic discrimination is aberrational and must be identified through a finding of intent (state action). This means that a substantial portion of structural inequality, racial disparities, and unconscious racism is left unchecked and intact.

This leads to the disconcerting conclusion that whenever the Roberts Court addresses a racial issue, the result is virtually predetermined based upon its formalistic interpretation of equality under the Fourteenth Amendment. This is post-racial determinism.

Advancing an analysis of the Court's political process decisions, this Article posits that the Court erroneously decided Schuette by discarding the doctrinal underpinnings of these decisions and focusing instead on process rather than substantive equality. This is the essence of the Court's post-racial proceduralism. Schuette can be understood as a decision that embraces processual values so that inequality is construed narrowly and equality of opportunity is interpreted broadly so that the neutral process value of access is a substitute for substantive equality. Post-racial proceduralism treats equality as a process, making the history, context, and actual outcomes that displace and impact people of color doctrinally irrelevant.

Identifying the salient features of post-racial discourse, this Article critiques neutrality as it rationalizes structural inequality. Part I unpacks and conceptualizes the post-racial discourse that sets the context for the Court's doctrinal reinterpretation of its political process decisions. After tracing the rhetorical components of post-racial discourse, Part I explores the Court's emphasis of the neutral process value of equal opportunity, revealing how it serves to obscure the present day effects of past discrimination.

Part II offers a comprehensive analysis and critique of the Court's political process decisions. Focusing specifically on how the Court shifts from an interpretive approach premised on structural inequality to a process-based approach. Part II reveals how the Court constitutionalizes the electorate's vision of a post-racial Constitution. The substantive mandate of the Fourteenth Amendment--the eradication of subordination and caste--is redefined so that access to the political process is the touchstone, notwithstanding any structural barriers to actual participation and the ability to affect change. This is the democratic myth.

Part II unpacks Justice Kennedy's plurality opinion in Schuette, revealing the democratic myth, and concludes by comparing Justice Breyer's surprising concurrence in Schuette with Justice Sotomayor's structural inequality dissent.

Rejecting post-racial constitutionalism, Part III constructs an argument for substantive equality, an analytical and doctrinal approach that foregrounds structural inequality and rejects post-racial neutrality. The core of the antisubordination and anticaste principles should not be determined by the whims of the electorate.

. . .

We are witnessing the power of distorted and neutral rhetoric that rings with deceptive clarity. This post-racial process discourse is advanced on many levels: in political discourse, by a distrustful citizenry energized by hateful rhetoric that appeals to their concerns of being "left behind" on the basis of "preferences" for minorities that diminish America's "greatness," and a Court that seeks to constitutionalize a mythic democracy that promises participation while implicitly endorsing structural exclusion.

Voter initiatives should not determine the substantive core of the Fourteenth Amendment. While democratic participation is essential to our Republic, decisions like Schuette perpetuate a democratic myth of accessibility while the political process has been restructured to ensure that race-conscious remedies are invalid. The danger is that we will accept this inequality as a natural product of our democracy. The Court once acknowledged this danger in its political process decisions; and, while these decisions have not been explicitly overruled, Schuette marks the constitutionalization of post-racial process discourse and the democratic myth. Now, more than ever, we must reject the rhetorical allure of this contrived neutrality.

Cedric Merlin Powell. Professor of Law and Associate Dean for Faculty Research and Development (2015-2017), University of Louisville Louis D. Brandeis School of Law. B.A., Oberlin College; J.D., New York University School of Law.