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Discrimination

Implicit Bias in the Age of Trump

The full text of this Book Review may be found by clicking on the PDF link to the left.

Introduction

I am watching a video of Donald Trump, the forty-fifth President of the United States. He stands before a sea of white people, many of them wearing red hats emblazoned with Trump’s campaign slogan, “Make America Great Again” (MAGA), or carrying signs that say “Keep America Great.”1×1. Trump Rally Crowd Chants “Send Her Back” While He Continues Attack on Ilhan Omar, CBS News (July 17, 2019), https://www.cbsnews.com/video/trump-rally-crowd-chants-send-her-back-while-he-attacks-ilhan-omar [https://perma.cc/DD5F-PRUT] [hereinafter Trump Rally]. I cannot find a Black or brown face in the crowd.2×2. See id. Trump has consistently called upon and used a few African Americans in order to refute claims that he is racist. See, e.g., Nikki Carvajal, Trump Hosts African American Pastors and Faith Leaders at the White House, CNN (July 29, 2019, 6:35 PM), https://www.cnn.com/2019/07/29/politics/donald-trump-african-american-pastors-white-house/index.html“>https://www.cnn.com/2019/07/29/politics/donald-trump-african-american-pastors-white-house/index.html”>https://www.cnn.com/2019/07/29/politics/donald-trump-african-american-pastors-white-house/index.html [https://perma.cc/59LX-USWE]; Remarks by President Trump in Meeting with Kanye West and Jim Brown, White House (Oct. 11, 2018), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-meeting-kanye-west-jim-brown [https://perma.cc/RWW7-GVR9]. Just days earlier Mr. Trump had attacked four congresswomen of color — Alexandria Ocasio-Cortez, Ilhan Omar, Ayanna Pressley, and Rashida Tlaib — tweeting that they should “go back” to the countries they came from, countries whose governments he called “a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world.”3×3. Donald J. Trump (@realDonaldTrump), Twitter (July 14, 2019, 8:27 AM), https://twitter.com/realDonaldTrump/status/1150381394234941448 [https://perma.cc/29QC-YN7J]; see also Katie Rogers & Nicholas Fandos, Trump Tells Congresswomen to “Go Back” to the Countries They Came From, N.Y. Times (July 14, 2019), https://nyti.ms/2LokWkq“>https://nyti.ms/2LokWkq”>https://nyti.ms/2LokWkq [https://perma.cc/3K27-SBPF] (explaining that President Trump’s tweets appeared to be “meant for members of the so-called squad”). After attacking the four Democratic congresswomen (“the squad”), Trump again went to Twitter to assert that he is “NOT Racist.” Donald J. Trump (@realDonaldTrump), Twitter (July 16, 2019, 9:59 AM), https://twitter.com/realdonaldtrump/status/1151129281134768128 [https://perma.cc/DGS7-P47R] (“Those Tweets were NOT Racist. I don’t have a Racist bone in my body!”). For more information on “the squad,” see William Cummings, “The Squad”: These Are the Four Congresswomen Trump Told to “Go Back” to Other Countries, USA Today (July 15, 2019, 12:25 PM), https://www.usatoday.com/story/news/politics/2019/07/15/who-is-the-squad-ocasio-cortez-omar-pressley-and-tlaib-make-mark/1732238001 [https://perma.cc/MJ9D-L8X2]. In his speech, he renews the attack begun in those tweets, this time singling out Congresswoman Omar.4×4. Trump Rally, supra note 2, at 1:53. Now, several people in the crowd begin to chant: “Send her back! Send her back!” The chant spreads until the whole crowd shouts: “SEND HER BACK! SEND HER BACK! SEND HER BACK! SEND HER BACK!” President Trump stops speaking and listens to the crowd, allowing the chant to continue5×5. Id. at 6:30. and basking in the exhilarating ritual of call and response that binds the members of the crowd to him and to each other.6×6. President Trump uses the four congresswomen of color to remind his audience of their whiteness, or to remind them that their whiteness is all they have. Cf. Howard Zinn, A People’s History of the United States 283–89 (1980) (discussing the use of racism to undermine populist movements led by farmers of both races); Ryan Grim & Briahna Gray, Podcast Special: Alexandria Ocasio-Cortez on Her First Weeks in Washington, The Intercept (Jan. 28, 2019, 5:03 PM), https://theintercept.com/2019/01/28/alexandria-ocasio-cortez-podcast [https://perma.cc/77PQ-L2ML] (“And LBJ talked about this — like, if you can convince a poor white man that he’s superior to a black man, he’ll empty his pockets for you.”). I can feel him grinning, clearly pleased with himself. He orchestrated this collective affirmation of his racist and nativist theme.7×7. See Amy Davidson Sorkin, From “Lock Her Up” to “Send Her Back”: Trump in North Carolina, New Yorker (July 18, 2019), https://www.newyorker.com/news/daily-comment/from-lock-her-up-to-send-her-back-trump-in-north-carolina [https://perma.cc/XN3M-7B2D] (noting that while President Trump claimed to disagree with the chant, his goal “seemed to be to make his supporters believe that they are the hated ones”). The chant recalls the “lock her up” chant used so effectively in his campaign against Hillary Clinton. Id. (“Lock Her Up, Send Her Back — the resentments begin to blur.”). President Trump’s racism is transparent. He hides nothing from us nor from his audience. He knows what they have come to hear, and he will not deny them. From the earliest moments of his campaign for President, he has positioned himself as the champion of an abandoned and unloved white nation under threat from a rising tide of Blacks, minorities, immigrants, and other un-American outsiders living off government handouts and perpetrating crime.8×8. See Briahna Joy Gray, The Problem with Calling Trump a Racist, Rolling Stone (Jan. 23, 2018, 4:54 PM), https://www.rollingstone.com/politics/politics-news/the-problem-with-calling-trump-a-racist-117010 [https://perma.cc/G874-QP7C] (“Trump glided into the 2016 presidential contest on the twin engines of a golden escalator and the Southern Strategy — signaling his antagonism toward non-white interests by flagging Mexican immigrants as an existential threat to American (read: white) purity.”); German Lopez, Donald Trump’s Win Tells People of Color They Aren’t Welcome in America, Vox (Nov. 9, 2016, 10:38 AM), https://www.vox.com/identities/2016/11/9/13570922/trump-election-2016-racism [https://perma.cc/FVW6-YFR4] (“From the very beginning, Donald Trump’s campaign for presidency was fueled by an undercurrent of racism and bigotry.”). President Trump’s racism predates his campaign for President of the United States. See, e.g., Michael Kranish & Robert O’Harrow Jr., Inside the Government’s Racial Bias Case Against Donald Trump’s Company, and How He Fought It, Wash. Post (Jan. 23, 2016), http://wapo.st/1Ujl8f9?tid=ss_tw [https://perma.cc/N59G-CALJ] (“White testers were encouraged to rent at certain Trump buildings, while the black testers were discouraged, denied or steered to apartment complexes that had more racial minorities, according to the testimony [in a 1973 civil rights case against future-President Trump’s business].”); Donald J. Trump (@realDonaldTrump), Twitter (Nov. 18, 2011, 10:54 AM), https://twitter.com/realdonaldtrump/status/137559273394802690 [https://perma.cc/2978-A6F5] (“Made in America? @BarackObama called his ‘birthplace’ Hawaii ‘here in Asia.’”); Josh Voorhees, All of Donald Trump’s Birther Tweets, Slate (Sept. 16, 2016, 10:15 AM), https://slate.com/news-and-politics/2016/09/donald-trumps-birther-tweets-in-order.html [https://perma.cc/P5MB-X6LP]. As President, Trump’s racism has continued unabated. See, e.g., Josh Dawsey, Trump Derides Protections for Immigrants from “Shithole” Countries, Wash. Post (Jan. 12, 2018, 7:52 AM), https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af-31ac729add94_story.html [https://perma.cc/B5MN-G22G]; German Lopez, Donald Trump’s Long History of Racism, from the 1970s to 2019, Vox (July 15, 2019, 9:40 AM), https://www.vox.com/2016/7/25/12270880/donald-trump-racist-racism-history [https://perma.cc/FT3H-VT22]; Donald J. Trump (@realDonaldTrump), Twitter (July 27, 2019, 7:14 AM), https://twitter.com/realDonaldTrump/status/1155073964634517505“>https://twitter.com/realDonaldTrump/status/1155073964634517505”>https://twitter.com/realDonaldTrump/status/1155073964634517505 [https://perma.cc/TL8V-5FD8].

I find it difficult to watch this white bonding scene. I feel sickened, assaulted, anxious, afraid, powerless, and sad.9×9. In recording my thoughts and feelings as I watch this video and when I read Professor Jennifer Eberhardt’s recent book, I am employing a methodology I use in my seminars in Critical Race Theory and Literature, Law, Race, and Culture. I ask students to do reflection pieces on each week’s readings. My suggestions for writing reflections include that they should convey both feelings and analysis. These suggestions may include a prompt such as: “Does the text capture or reflect your own life experience or do you experience a dissonance between your own experience and the text?” See, e.g., Charles R. Lawrence III, The Word and the River: Pedagogy as Scholarship as Struggle, 65 S. Cal. L. Rev. 2231, 2247–48 (1992). It is the familiarity of the scene, the déjà vu, that makes me sick. I hear my mother telling of sitting at her best friend’s kitchen table in Vicksburg, Mississippi, when neighbors brought news of her friend’s father taken from his place of business, hanged, and burned. I recall photographs: of lynch mobs where white mothers and fathers, with their small children in tow, gather to picnic with their neighbors under the charred bodies of Black men hanging above them;10×10. Cf. Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror 33–37 (3d ed. 2017), https://eji.org/wp-content/uploads/2019/10/lynching-in-america-3d-ed-080219.pdf [https://perma.cc/K7LN-F4WH] (explaining that many lynchings “were carnival-like events, with vendors selling food, printers producing postcards featuring photographs of the lynching and corpse, and the victim’s body parts collected as souvenirs,” id. at 33); Emma Coleman Jordan, Crossing the River of Blood Between Us: Lynching, Violence, Beauty, and the Paradox of Feminist History, 3 J. Gender Race & Just. 545, 546 (2000) (recalling discussions with Anita Hill about how “everybody has some lynching story in their family”); Campbell Robertson, A Lynching Memorial Is Opening. The Country Has Never Seen Anything Like It., N.Y. Times (Apr. 25, 2018), https://nyti.ms/2vS6A55“>https://nyti.ms/2vS6A55”>https://nyti.ms/2vS6A55 [https://perma.cc/B4YX-LWR6]. of the contorted faces of white women hurling epithets at Elizabeth Eckford as she walks the gauntlet of the mob to her first day at Little Rock Central High School.11×11. In this iconic image, fifteen-year-old Elizabeth Eckford walks alone while a white mob behind her hurls insults at her. See Aimee Lamoureux, The True Story Behind the Most Iconic Image of the Civil Rights Movement, All That’s Interesting (Apr. 11, 2018), https://allthatsinteresting.com/elizabeth-eckford-hazel-bryan [https://perma.cc/X98T-98HY]. Eckford was denied entrance to Little Rock Central High School that day but eventually integrated the school, along with eight other Black students, with the assistance of the United States Army. Id. This familiar feeling, the churning in my gut, comes not just from echoes of my family’s and people’s history, but also from contemporary scenes: of white nationalists marching with torches and Nazi regalia in Charlottesville, Virginia;12×12. See Paul P. Murphy, White Nationalists Use Tiki Torches to Light up Charlottesville March, CNN (Aug. 14, 2017, 11:37 AM), https://www.cnn.com/2017/08/12/us/white-nationalists-tiki-torch-march-trnd/index.html [https://perma.cc/SH7X-KZB4]; Ainara Tiefenthäler & Natalie Reneau, Swastikas, Shields and Flags: Branding Hate in Charlottesville, N.Y. Times (Aug. 15, 2017), https://nyti.ms/2vAmO0u“>https://nyti.ms/2vAmO0u”>https://nyti.ms/2vAmO0u [https://perma.cc/FSF7-LN27]. and of massacres at a Black church in Charleston, South Carolina;13×13. See Charles R. Lawrence III, The Fire this Time: Black Lives Matter, Abolitionist Pedagogy and the Law, 65 J. Legal Educ. 381, 398–400 (2015) [hereinafter Lawrence, The Fire this Time] (describing the “Massacre in Charleston,” id. at 398); see also id. at 400 (“[Dylann] Roof’s act echoes the law’s clear and unambiguous rendering of black life in Dred Scott v. Sandford that blacks ‘had no rights which the white man was bound to respect.’” (quoting Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857))). at mosques in Christchurch, New Zealand;14×14. See Helen Regan & Sandi Sidhu, 49 Killed in Mass Shooting at Two Mosques in Christchurch, New Zealand, CNN (Mar. 15, 2019, 1:33 PM), https://www.cnn.com/2019/03/14/asia/christchurch-mosque-shooting-intl/index.html [https://perma.cc/8LA9-PNWT]. at a synagogue in Pittsburgh, Pennsylvania;15×15. See Campbell Robertson, Christopher Mele & Sabrina Tavernise, 11 Killed in Synagogue Massacre; Suspect Charged with 29 Counts, N.Y. Times (Oct. 27, 2018), https://nyti.ms/2JlIq5U [https://perma.cc/PE2C-646U]. and at a shopping center in El Paso, Texas,16×16. See Simon Romero, Manny Fernandez & Mariel Padilla, Massacre at a Crowded Walmart in Texas Leaves 20 Dead, N.Y. Times (Aug. 3, 2019), https://nyti.ms/2Yks8Fb [https://perma.cc/6R3W-HEKG]. the shooters in all these massacres urged on by racism, anti-Semitism, and xenophobia.17×17. For more on the rise of hate crimes and racial violence, see Anti-Defamation League, Murder and Extremism in the United States in 2018, at 9 (2019), https://www.adl.org/media/12480/download [https://perma.cc/FCQ8-L5FB]; Lawrence, The Fire this Time, supra note 14, at 398 n.76; Ayal Feinberg, Regina Branton & Valerie Martinez-Ebers, Counties that Hosted a 2016 Trump Rally Saw a 226 Percent Increase in Hate Crimes, Wash. Post (Mar. 22, 2019, 7:45 AM), https://www.washingtonpost.com/politics/2019/03/22/trumps-rhetoric-does-inspire-more-hate-crimes“>https://www.washingtonpost.com/politics/2019/03/22/trumps-rhetoric-does-inspire-more-hate-crimes/”>https://www.washingtonpost.com/politics/2019/03/22/trumps-rhetoric-does-inspire-more-hate-crimes [https://perma.cc/WX9Z-4GNE]; and Press Release, FBI, FBI Releases 2017 Hate Crime Statistics (Nov. 13, 2018), https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2017-hate-crime-statistics [https://perma.cc/444W-N99K].

Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do

By Jennifer L. Eberhardt. New York, N.Y.: Viking. 2019. Pp. 340. $28.00.

My anxiety comes from knowing that violence follows a scene like this one,18×18. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2329–31, 2365 & n.229 (1989) (discussing how hate speech is a precursor to violence and genocide). but I think my sadness is a grief for my country, in the recognition that we still live with our country’s original sin of choosing slavery over freedom, property over humanity.19×19. See Toni Morrison, Playing in the Dark: Whiteness and the Literary Imagination 47 (1992) (“Deep within the word ‘American’ is its association with race. . . . American means white, and Africanist people struggle to make the term applicable to themselves with ethnicity and hyphen after hyphen after hyphen.”); Nell Painter, Opinion, Trump Revives the Idea of a “White Man’s Country,” America’s Original Sin, The Guardian (July 20, 2019, 2:00 PM), https://www.theguardian.com/commentisfree/2019/jul/20/as-donald-trump-revives-racism-struggle-against-it-gathers-momentum [https://perma.cc/4ZES-AEQF]; Nell Irvin Painter, Opinion, What Whiteness Means in the Trump Era, N.Y. Times, Nov. 13, 2016, at SR4; see also Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 26–50 (1987). I am saddened that Trump can so easily invoke white supremacy’s tale.

I also feel anger, and I wish I felt more. There is something cathartic and clarifying about anger, something empowering and enabling, whereas anxiety, fear, and sadness disable and disempower, cause flight from, not fight against, what oppresses us. Although I loathe this President, my anger is not directed primarily toward him and the crowd, whom he seduces and manipulates. I am most angry at the commentators, pundits, and professors, who ask, with serious and sagacious intonation: “Is the President racist?”20×20. See, e.g., Meredith Dost, Ryan D. Enos & Jennifer L. Hochschild, Is President Trump’s Rhetoric Racist? It Depends on Whom You Ask., Wash. Post (Aug. 12, 2019, 7:00 AM), https://www.washingtonpost.com/politics/2019/08/12/is-president-trumps-rhetoric-racist-it-depends-whom-you-ask [https://perma.cc/F5EU-WY3N] (concluding that “[w]hen judging what is and is not racist, Republicans and Democrats, Trump supporters and opponents, are talking past one another”); Is Donald Trump Racist?, Al Jazeera: Inside Story (July 17, 2019, 6:24 PM), https://www.aljazeera.com/programmes/insidestory/2019/07/donald-trump-racist-190717174455525.html [https://perma.cc/AG6E-5HCM]. I am angry at a Supreme Court that would look at this scene and say there is no evidence of constitutionally cognizable racism, nothing that violates the values enunciated in the Fourteenth Amendment,21×21. See Eric K. Yamamoto & Rachel Oyama, Masquerading Behind a Facade of National Security, 128 Yale L.J.F. 688, 691 (2019) (noting that the majority in Trump v. Hawaii “appeared to repudiate Korematsu’s validation of mass racial incarceration while replicating its ‘logic’ of unconditional deference to the President” (citing Trump v. Hawaii, 138 S. Ct. 2392 (2018))); see also id. at 713 (“Given the paucity of evidence supporting the ‘superficial claim of national security,’ Justice Sotomayor characterized the Trump majority’s ‘rational basis’ review as blindly deferential, paralleling the Korematsu majority’s closed-eyed approach.” (quoting Trump, 138 S. Ct. at 2448 (Sotomayor, J., dissenting))). See generally Ian Haney-López, Intentional Blindness, 87 NYU L. Rev. 1779 (2012) (arguing that the Court’s racial jurisprudence seems intentionally blind to the persistence of racial discrimination against nonwhites). nothing that corrupts the process of democracy.22×22. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 168 (1980).

Professor Jennifer Eberhardt opens her book, Biased, with a story. She is walking into an auditorium filled with Oakland police officers. As the chair of a federal oversight team charged with investigating extensive civil rights violations by members of the Oakland Police Department, she has come to share the team’s findings with the department’s officers. This is a much smaller audience than the one that gathered to hear President Trump, and she knows that they have not come to cheer her. She knows she is facing a hostile crowd, and she writes: “I wanted to help the officers to understand the insidious ways in which implicit bias could act on human decision making” (p. 1).

Eberhardt’s purpose here is very different from the President’s. Rather than seeking to arouse and exploit her audience’s racism, she seeks to help them acknowledge their racism and to understand it. She wants to show them how the brain works — the way that it works outside of our consciousness — to cause racist thoughts and behavior “despite . . . noble intentions and deliberate efforts” (p. 1). But her usual academic consultant’s repertoire is getting nowhere with this crowd.

Instead, she decides to tell a personal story. She and her five-year-old son are on an airplane, and her son sees a Black man and remarks, “Hey, that guy looks like Daddy” (p. 3). But the guy doesn’t look like Daddy at all, no resemblance in height, skin color, or facial features. The man wore dreadlocks, and Eberhardt’s son’s father, her husband, was bald. Then, her son blurts out, “I hope that man doesn’t rob the plane” (p. 3). “Why would you say that?” she asks him (p. 4). “You know Daddy wouldn’t rob a plane” (p. 4). And finally her son replies, “I don’t know why I said that. I don’t know why I was thinking that” (p. 4).

Eberhardt continues, sharing her thoughts as she completes her story:

I took a deep breath, and when I looked back out at the crowd in the auditorium, I saw that the expressions had changed. We were parents, unable to protect our children from a world that is often bewildering and frightening, a world that influences them so profoundly, so insidiously, and so unconsciously that they — and we — don’t know why we think the way we do. (p. 4)

This scene feels familiar to me as well, although this time the familiarity I experience does not come from the historical echoes of threat, violence, and disparagement of my personhood that the Trump rally evoked. The familiarity I feel here comes directly from the etymological root of the word “familiar.” Jennifer Eberhardt feels like family to me. I feel as if I am standing in her shoes as she looks out at this audience. I have lived the story she tells here. I have been the Black professor from the prestigious academic institution invited to speak about my fieldof professional and scholarly expertise and also to speak about race and racism. Because I am Black in a world that is not colorblind, I know that I also inevitably speak about myself. Jennifer Eberhardt knows this too. She knows that this is especially so when we are invited to talk about race and racism. I know from the family stories she tells in this book that she was raised by people, like my own parents and grandparents, who reminded her always, with explicit lessons and by the example of their own lives, that she “represented the race.” She needed to be nicer, be smarter, work harder, be more well-spoken than her white classmates and colleagues, because that’s what it took to succeed while Black, while America’s founding, and still vital, narrative of white supremacy told a story that imagined her as the opposite of all of those virtues. This was not just a story about her. Rather, it was a story about us. Each time she stands before an audience, she represents all of us, and she must tell a story that speaks back to and challenges white supremacy’s defamatory story of our inferiority.23×23. See Charles Lawrence III, Listening for Stories in All the Right Places: Narrative and Racial Formation Theory, 46 Law & Soc’y Rev. 247, 252 (2012) [hereinafter Lawrence, Listening for Stories] (describing how when professional people of color speak, they engage in a political project of “racial reconstruction”); see also Charles R. Lawrence III, Passing and Trespassing in the Academy: On Whiteness as Property and Racial Performance as Political Speech, 31 Harv. J. Racial & Ethnic Just. 7, 10–12 (2015) [hereinafter Lawrence, Passing and Trespassing] (describing “racial performance” as political speech).

Eberhardt does not include these thoughts, or the feelings that accompany them, when she tells the story of her presentation to the Oakland police. Surely there is some resistance to the messenger, as in: “Who is this Black woman who thinks she can come and tell us we are racists?” Eberhardt will soon tell us that her research shows these officers have been conditioned by racial images to perceive the Black man on the street as a dangerous threat. She must also know that a different but related set of images has conditioned them to think of a Black woman as anything but a highly trained and authoritative scientist, much less one who is objective and unbiased on the subject of race.24×24. She is also aware of the Black and Latino officers who have seen the department’s racism from the inside and are quietly rooting for her to prove herself both competent and persuasive, hoping their “sister” will represent them in challenging the narrative that makes their white fellow officers perceive them as no different from that frightening Black man on the street. Maybe she was not thinking consciously of how racialized and gendered implicit biases were evident in this scene, of how it might have influenced the way she told her story or whether her audience heard her. As I read the story, I thought: Is there something to be learned from asking why those of us whom white supremacy’s narrative deprives of personal authority as full human beings choose to tell stories that, like those from science and the law, have an authority of their own?25×25. Of course, the authority that these narratives possess is not inherent. They have been given authority by those with power, and, as Professor Robert Cover reminds us, that authority is always “essentially contested.” See Cover, supra note 1, at 17 (citing W. Gallie, Philosophy and the Historical Understanding 157–91 (1964)).

I begin with these two scenes, of Trump and Eberhardt and their audiences, because each is a story, a narrative. Each scene provides a text that we may interpret, as evidence of who we are, of “our world,” our nomos.26×26. Cover argues that “[t]his nomos is as much ‘our world’ as is the physical universe.” Id. at 5. We can also read each scene as an adversarial, creative text. The story is told to create meaning and community, to shape our nomos, to make a moral argument for whom we should be or an aspirational argument for whom we might be. Professor Robert Cover instructs us that we cannot understand law apart from the stories we tell one another about who we are and who we should or might be.27×27. See id. at 4; see also id. at 11 n.30 (“The state becomes central [to the process of giving meaning to normative activity] only because . . . an act of commitment is a central aspect of legal meaning. And violence is one extremely powerful measure and test of commitment.”). Ultimately our stories make the law.

When the Harvard Law Review asked me to write a review of a book whose title and subject is uncovering hidden prejudice, I was puzzled. Why choose a book about hidden bias when the active threat is self-proclaimed racists marching in the streets? It seemed a strange time to worry about hidden racism when the President of the country was holding rallies and building walls to proclaim himself the protector of a white nation.28×28. See Toni Morrison, Making America White Again, New Yorker (Nov. 14, 2016), https://www.newyorker.com/magazine/2016/11/21/making-america-white-again [https://perma.cc/2XDX-E5JW] (“So scary are the consequences of a collapse of white privilege that many Americans have flocked to a political platform that supports and translates violence against the defenseless as strength. . . . On Election Day, how eagerly so many white voters — both the poorly educated and the well educated — embraced the shame and fear sowed by Donald Trump.”); see also Michael Crowley & David E. Sanger, Trump Celebrates Nationalism in U.N. Speech and Plays Down Iran Crisis, N.Y. Times (Sept. 24, 2019), https://nyti.ms/2kTwuR6 [https://perma.cc/2HTA-E3CX] (noting Trump’s use of the language of “replacement” and its white nationalist origins); Nell Irvin Painter, supra note 20. As I contemplated what I might write, if I accepted this invitation, I realized that I could regard the puzzlement I was experiencing — “You must be kidding. You want me to talk about hidden bias when they’re burning a cross on my lawn?” — as my theme. I admit this was my first impulse. Alternatively, I could treat my question as a real question, posed without irony, as a serious challenge.

This Review chooses the latter of those two roads, although the reader will discover I am not completely cured of my initial, “are you kidding?” impulse. These two texts — Eberhardt’s book on the lived experience and science of implicit bias, and the ascendancy of overt racism — appear contemporaneously. I have argued often before that the interpretation of cultural texts is essential to making law and justice.29×29. See Charles Lawrence III, Unconscious Racism Revisited: Reflections on the Impact and Origins of “The Id, the Ego, and Equal Protection,” 40 Conn. L. Rev. 931, 938–39, 964–66 (2008) [hereinafter Lawrence, Revisited]; Charles R. Lawrence III, Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L.J. 1353, 1370 n.28 (2005) [hereinafter Lawrence, Forbidden Conversations]; Charles R. Lawrence III, Local Kine Implicit Bias: Unconscious Racism Revisited (Yet Again), 37 U. Haw. L. Rev. 457, 458–59 (2015) [hereinafter Lawrence, Local Kine Implicit Bias]; Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–81 (1987) [hereinafter Lawrence, Id, Ego & Equal Protection]. This Review takes seriously the questions of why these texts appear at the same time, how they relate to one another, and what work they do to both manifest and shape our nomos. Of course, as Cover reminds us, there is a third storyteller here, a third text — the law. And, I will add a fourth text that I will call the abolitionist or movement story.30×30. See, e.g., Charles R. Lawrence III, Foreword, Race, Multiculturalism, and the Jurisprudence of Transformation, 47 Stan. L. Rev. 819, 823–25 (1995) [hereinafter Lawrence, Jurisprudence of Transformation]; Lawrence, The Fire this Time, supra note 14, at 387 (“Any law that claims racial justice or human justice as its purpose must transform the status quo. . . . A racial justice law must redistribute privilege.”). I give this name to what Professor Mari Matsuda has called stories from the bottom.31×31. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 324 (1987). Movement stories speak directly to our collective values. They ask us to confront our country’s racism. They ask a descriptive and interpretive question: “Who are we?”32×32. Cover writes: “The normative universe is held together by the force of interpretive commitments — some small and private, others immense and public. These commitments — of officials and of others — do determine what law means and what law shall be.” Cover, supra note 1, at 7. And they ask moral questions: “Who should we be? How should we constitute ourselves?”33×33. See id. at 9 (“A nomos is a present world constituted by a system of tension between reality and vision. Our visions hold our reality up to us as unredeemed.”); see also Lawrence, Forbidden Conversations, supra note 30, at 1398.

Eberhardt has written an insightful, thoughtful, and eminently readable book about racism and implicit bias. Eberhardt is a scientist, scholar, sought-after consultant, and, as she shows in this book, a master science teacher. With clear explanation, real-world examples, and complex context, the book introduces the vital and pioneering research she and her colleagues have done to explore the architecture and workings of the brain and the psychological mechanisms that cause racial bias, distort our perceptions, shape our behavior, and influence the decisions we make each day. But Eberhardt clearly intends that this book do more than serve as a primer for the uninitiated. She is drawn to this research by her desire to change the culture of racism she has experienced in her own life as a Black woman. She writes to engage in the project of racial justice, and she invites us to join her in that enterprise. To that end she surrounds her science lessons with stories from her life, stories in which she hopes we will see ourselves and recognize a shared humanity with her and enlist in her justice project.

Early in the book, she tells us how she believes her work as a scientist is essential to her justice project:

Confronting implicit bias requires us to look in the mirror. To understand the influence of implicit racial bias requires us to stare into our own eyes . . . to face how readily stereotypes and unconscious associations can shape our reality. By acknowledging the distorting lens of fear and bias, we move one step closer to clearly seeing each other. And we move one step closer to clearly seeing the social harms — the devastation — that bias can leave in its wake. (p. 7)

This Review takes up Eberhardt’s call for us to “look in the mirror.” Rather than ask the narrow question of whether the book helps us better understand how our brains work to hide our biases from view, I treat the book, and the larger narrative of science of which it is a part, as social text. I ask what stories are told in this book, and I ask how those stories, when read or heard in conversation with other stories, shape our collective beliefs about what is right and wrong, and ultimately our laws.

Part I of this Review introduces Biased. I ask why Eberhardt tells her story, what theory of social change informs that story, and why she believes this story will make a difference. The answers to those questions comprise what I call the “Science Story.” Part I also introduces the legal literature and the work done by legal scholars, lawyers, and a small group of judges to apply insights from the science of implicit bias to the law. I argue that the legal reform project that these lawyers have taken on adopts the same theory, vision, and approach to social change as does Eberhardt’s book, so I include this work in my discussion of the science story.

Part II describes the “Law’s Story.” I consider a series of cases from Plessy v. Ferguson34×34. 163 U.S. 537 (1896). to Washington v. Davis35×35. 426 U.S. 229 (1976). to demonstrate that Supreme Court jurisprudence tells a story that denies our collective embrace of racism and white supremacy. This story of denial plays a central role in our failure to achieve the purpose of the Fourteenth Amendment and to heal the sickness of a country and Constitution established and built on plunder and enslavement and on the ideology that justified both. This Part reprises an argument I have made before: that the Court should look to the cultural meaning of legal and social texts to recognize and redress the continuing presence of racism in our democracy.36×36. I have touched on the significance of cultural meaning as a guide in reading texts before. Lawrence, Revisited, supra note 30, at 943–44; Lawrence, Local Kine Implicit Bias, supra note 30, at 465 n.23, 492 n.107; Lawrence, Id, Ego & Equal Protection, supra note 30, at 369–76. This Review continues an ongoing conversation among lawyers, jurists, legal scholars, psychologists, and social scientists. The Court’s opinions do not turn on the failure of legal advocates to support their legal claims with scientific evidence. Rather, the Court makes a conscious choice to deny the clear presence of racism. A central premise in this story of denial is the law’s claim that racism causes no injury where there is no proof of individual fault and causation. This makes inevitable the story’s concluding chapter, in which we learn that we have no collective responsibility for the injury racism does and that societal discrimination is something our Constitution will not see.

Part III introduces the “Abolitionist Story.” I use stories from literature, popular culture, and social movements. I argue that these stories, in contrast to the stories told by the law and science, confront us with the truth of our racism. They speak to all of us rather than identifying blameworthy perpetrators so that the rest of us may avoid culpability for the continued existence of racism’s ideology, institutions, and structures. Movement stories demand that we take responsibility for our nomos. They speak directly to our constitutive and constitutional values, challenging us to commit to the values of antiracism and human liberty and to the affirmative disestablishment of our pre-Reconstruction constitutional premises of slavery and white supremacy. I argue that abolitionist stories are essential to the justice project, to healing the injury racism has inflicted upon my Black and brown sisters and brothers, upon my white sisters and brothers who share our history, and upon our democracy. These are the only stories that will save us.

 

 


* Professor of Law Emeritus, William S. Richardson School of Law; Centennial Professor Emeritus, University of Hawaiʻi at Mānoa. B.A., Haverford College, 1965; J.D., Yale Law School, 1969. The author thanks Mari Matsuda and Jon Goldberg Hiller, who read early drafts of this Review and shared their insights with me. I am indebted to Terina Faagau for intrepid research assistance, and to the editors of the Harvard Law Review for rigorous editorial support.