When it comes to people of color, the Roberts Court treats “racism” as if it is an objective fact — out there in the world, apparent to anyone who stumbles upon it. The Roberts Court invites observers to believe that it is just using simple common sense when it identifies, or refuses to identify, something as racism.
The 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. The ways in which white people protected white supremacy back then, and the forms that white supremacy took . . . that is racism. So racism is eugenics. Racism is genocide. Racism is racists disarming formerly enslaved black people to render them helpless and easily killed. Racism is a bigoted prosecutor trying to convict an innocent black man of murder. Racism is the wholesale exclusion, by law or practice, of black citizens from jury rolls. Racism is deeply held views about nonwhite people’s “natural” violent tendencies. Racism is self-described white supremacists cleverly designing nonunanimous jury rules that silence the voices, and nullify the votes, of black people. Racism is Japanese internment camps. Racism is literacy tests and poll taxes and certificates of good moral standing as qualifications to vote. When confronted with a claim of racial discrimination, the Roberts Court appears to be simply determining whether the alleged discrimination resembles what the country did in the pre–Civil Rights Era. If the Court sees a resemblance between the present-day harm and the racism of yesteryear, the Court provides relief. If it sees no resemblance, it provides no relief.
This Foreword intervenes to observe that the Roberts Court’s impoverished conceptualization of what “counts” as racism against people of color is a strategy that the Court deploys to accomplish regressive ends. It permits the Court to do nothing to destabilize and disestablish the country’s existing racial hierarchy. Essentially, the Court provides a remedy to people of color seeking relief from racially burdensome laws and policies only when the racism embedded in the challenged law or policy is so closely tied to white supremacy that it would be embarrassing for the Court to do nothing. The Roberts Court’s racial common sense is a tactic that allows the Court to do no more than the absolute bare minimum and, in so doing, maintain a modicum of legitimacy.
Of note, in its project of ridding the present only of vintage instrumentalities of racism, the Roberts Court does not cabin itself to the Equal Protection Clause. In fact, the Court’s recent Terms reveal that it typically does not use the Equal Protection Clause to remedy nonwhite claimants’ racial injuries. Instead, the Court uses other parts of the Constitution — the Second Amendment, the Sixth Amendment, and the Due Process Clause — to provide redress to nonwhite people. As this Foreword argues, this partially explains Dobbs v. Jackson Women’s Health Organization1: there, the Court used the Due Process Clause to “protect” black people from what conservative actors have proposed is a genocide perpetrated by abortion providers.2 This also partially explains New York State Rifle & Pistol Ass’n v. Bruen3: there, the Court used the Second Amendment to “protect” black people from what conservative actors have proposed is a racist disarmament that began in the Reconstruction Era South.4 This Foreword intends to alert race scholars that they will not fully comprehend the Court’s grasp of race and racism if they focus solely on equal protection cases, or voting rights cases, or criminal procedure cases. Not only is the Court invoking race across these domains, it is invoking race outside of these domains as well. This Foreword endeavors to map the Court’s understanding of racism more fully, showing connections and disconnections — consistency and contradiction — across otherwise-siloed areas of constitutional law.5
While the Justices who have authored the Court’s recent race cases likely would deny that they have a theory of racism that informs their practice of identifying what is and is not racism, they most certainly do. A theory lies beneath the Roberts Court’s racial common sense. It is theory masquerading as no-theory.
First, racism was much more complicated in the pre–Civil Rights Era than the racial theory that the Roberts Court embraces. That is, the Roberts Court’s theory of racism is partial. It is incomplete. It is true that racial hierarchy in the pre–Civil Rights Era was sustained through overt bigotry as well as facially race-neutral laws that either were intended to harm people of color or were applied in a discriminatory manner. However, racial hierarchy was also sustained through facially race-neutral laws and policies that neither had an underlying discriminatory intent nor were discriminatorily applied. As Professor Katie Eyer has recently explained, during the pre–Civil Rights Era, racial segregation in the North certainly was accomplished through “nominally ‘colorblind’ Jim Crow policies, which were intended to (and did) instantiate segregation and discrimination.”6 But it was also produced through “truly ‘de facto’” processes.7 Some portion of racial segregation in the North was achieved “without purposefully racial state intervention.”8 Thus, if the Roberts Court is willing to remedy contemporary racial injuries when they recall pre–Civil Rights Era racism, and if racial inequality in the pre–Civil Rights Era was effectuated through facially race-neutral laws that were not intended to produce and reproduce racial hierarchy (alongside other more invidiously motivated devices and processes), then the Roberts Court should be willing to remedy contemporary racial injuries generated through facially race-neutral laws and policies that are not designed to reinstantiate racial inequality. In other words, the Roberts Court should be keen to strike down, or at least be skeptical of, all laws that have a harmful disparate impact on people of color without regard to whether there is evidence that an intent to harm motivated the law. The Roberts Court, of course, is not. In this way, the Roberts Court’s theory of pre–Civil Rights Era racism is abridged. Perhaps even more than being abridged, the Roberts Court’s theory of pre–Civil Rights Era racism is convenient.
Second, the Roberts Court invites observers to believe that it is engaged in a perfectly objective, atheoretical inquiry into whether a claim of racial discrimination “looks like” what happened in the pre–Civil Rights Era. However, the Roberts Court’s methodology of finding racism by looking for resemblances between the alleged contemporary discrimination and what they did in the bad old days is a value-laden, interpretive exercise. The determination that something “looks like” something else is not at all obvious, and it is not at all value neutral. To a lot of observers, the Muslim travel ban looked like the Japanese exclusion order.9 To a lot of observers, voter identification requirements, the closure of polling places, and limitations on early voting look like literacy tests, poll taxes, and the necessity of providing certificates of good moral standing in order to cast a ballot.10 The Roberts Court, however, has refused to see — or more likely, refused to acknowledge — the resemblance in both contexts. Further, while the Court searches for similarity between the racial injuries for which contemporary nonwhite claimants seek relief and the racial injuries that nonwhite people endured during the pre–Civil Rights Era, it is not at all consistent about the level of specificity at which its analysis is operating. In the context of voting, the Court’s analysis operates at a painfully high degree of specificity: while voting restrictions were certainly techniques that actors used during the pre–Civil Rights Era to injure people of color, the specific use of voter identification laws, for example, was not. Hence, the Roberts Court sees no racial injury in present-day voter identification laws that it is willing to remedy. Meanwhile, in the context of abortion, the Court’s analysis operates at an astronomically high level of generality: to the Roberts Court, the elevated rates of abortion among black people look like a genocide.11 A more granular analysis, of course, would reveal no relevant likeness between present-day practices of abortion and genocide. Nevertheless, the Court saw a racial injury that it gladly remedied through its decision in Dobbs.12 In short, the Court toggles back and forth in the level of generality that it applies in assessments of whether a contemporary injury “looks like” a pre–Civil Rights Era injury — further proof that the Court strategically deploys its racial theory to accomplish particular ends.
We add a layer of complexity when we consider the Court’s understanding of white claimants’ allegations of racial discrimination. When white claimants allege racial discrimination, the Court does not look for resemblances to what happened in the pre–Civil Rights Era. The Court is willing to recognize racism against white people even when the technique of the alleged racial disenfranchisement is thoroughly modern — having no apparent antecedent in the bad old days of the nation’s formal racial caste system.13 Of course, the Court may say that the racial injuries that white claimants allege, and for which the Court is willing to provide relief, mirror the racism that occurred during the pre–Civil Rights Era. We see this in the affirmative action context: in the Court’s next Term, a conservative majority is likely to say that affirmative action programs keep white and Asian students out of competitive colleges and universities in a way that is indistinguishable from Alabama Governor George Wallace standing in front of the schoolhouse door and keeping black students out of white schools.14 The discovery of a resemblance is a matter of interpretation, after all.
But other areas of law — namely, the Roberts Court’s approach to disparate impact doctrine — make it apparent that when it comes to white claimants, the Court is not wedded to eliminating racial discrimination only when the Court believes that the technique of racial disenfranchisement harkens back to what bad actors did in the bad old days. In the disparate impact context — as in the context of affirmative action — the Court demonstrates a special sensitivity to the feelings, expectations, and experiences of white people.15 That is, the Court finds racism when white people feel like they have been victims of racism, effectively exempting white claimants from having to show similarity between their alleged injuries and the injuries inflicted during the pre–Civil Rights Era. When one considers this in light of the Court’s willingness to remedy nonwhite claimants’ racial injuries only when they bring to mind the pre–Civil Rights Era — and when one considers that the Court has never thought nonwhite people’s feeling that they have been victims of racism answered the question of whether they have experienced a constitutionally relevant injury — one sees the depth of the inequality found in the Roberts Court’s jurisprudence.
We might be tempted to explain this disjuncture — with the Court being loath to provide remedies for nonwhite people unless their injuries remind the Court of pre–Civil Rights Era racism, but simultaneously being amenable to providing remedies for white people’s altogether “new” racial injuries — in terms of the Court’s equal protection jurisprudence and its dissimilar treatment of laws that contain an explicit racial classification versus facially race-neutral laws that have a disparate racial impact.16 However, equal protection doctrine can only partially account for the disconnection that this Foreword observes.
To explain: the Court has long interpreted the Equal Protection Clause to require deference from the judiciary when it reviews facially race-neutral laws that have a disparate negative impact on a racial group.17 Absent a showing that the law was passed with a discriminatory intent — that the lawmaker passed the law “at least in part ‘because of,’ not merely ‘in spite of’”18 the disparate impact that it will have — courts must use deferential rational basis review when an aggrieved party challenges the law.19 The result of this doctrine is to remove from the purview of constitutional remedy facially race-neutral laws and processes that reproduce racial hierarchies that were established during the period of formal racial inequality.20 This jurisprudence makes it extremely likely that nonwhite claimants seeking a judicial reprieve from a racially burdensome law will lose.21
At the same time, the Court has established that it will review with strict scrutiny any law that contains a racial classification on its face — even when that law was passed with “benign” motives and has racially equitable ends.22 Thus, the judiciary approaches laws that are intended to dismantle the nation’s racial hierarchy with the same degree of constitutional skepticism as it does laws that are designed to reproduce and protect it.23 Consequently, facially race-conscious affirmative action laws that may unsettle white people’s racial advantages in hiring and college admissions are deemed constitutionally suspect and are much more likely to be struck down.24 This jurisprudence increases the likelihood that white claimants seeking a judicial reprieve from a law that they experience as racially burdensome will win.25
However, this equal protection jurisprudence cannot entirely explain the phenomenon this Foreword observes, whereby the Court provides redress for nonwhite people’s racial injuries only when those injuries remind the Court of the bad old days of formal white supremacy while refusing to require the same of white claimants.26 First, as this Foreword demonstrates, the Court has not cabined to the Equal Protection Clause its demand that nonwhite people demonstrate that “old-school” racism is at work. Rather, this Foreword shows that the 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. Second, if nonwhite people’s racial injuries have this characteristic, the Court is willing to recognize, and provide remedies for, nonwhite people’s racial injuries even when the challenged law is facially race-neutral and was not motivated by discriminatory intent. This is what the Court did in Dobbs: it reversed Roe v. Wade27 in order to, among other things, be able to say that it saved black people from a genocide that abortion providers were perpetrating, albeit unintentionally, through facially race-neutral laws that permit abortion. This is what the Court did in Bruen: it struck 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. The Court has been willing to strike down facially race-neutral laws when the Court can frame the law as having harmed people of color.
It deserves repeating that in light of the Court’s development and deployment of doctrines and stratagems that allow it to leave racial stratification and subordination in the United States basically untouched, only the most naïve should believe that the Court actually sought to protect black people by deciding Dobbs and Bruen in the way that it did. The Court “protects” people of color only when it serves conservative ends. In Dobbs and Bruen, the protectionist rationale justified the reversal of Roe and an expansive interpretation of the Second Amendment; hence, the Court invoked it.
To be clear, from a racial justice perspective, the Roberts Court’s jurisprudence is ghastly. Judicial responsiveness to nonwhite people’s racial injuries only when those injuries harken back to the pre–Civil Rights Era means that nonwhite people cannot expect the courts to intervene in the race-neutral processes that do most of the heavy lifting of reproducing racial disadvantage and reiterating racial hierarchy in the post–Civil Rights Era.28 Further, 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.29 In essence, the Court’s requirement that nonwhite people’s racial injuries bear a resemblance to pre–Civil Rights Era racism is part of a scheme that allows the Court to assert that any racism against people of color that exists today is a lingering, marginal relic of a bygone period — as opposed to a phenomenon that we continually reproduce through the choices that we make about how to organize society.30 Further still, judicial responsiveness to white people’s “new” racial injuries means that white people receive judicial and constitutional solicitude not afforded to nonwhite people. It also means that most explicitly race-conscious 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.31
To summarize this Foreword’s argument: the Roberts Court has adopted a contrived, “common sense” approach to what counts as racism against people of color. This approach allows the Court to maintain a small measure of legitimacy by doing the bare minimum with respect to addressing racial subordination. The Court is willing to remedy racial discrimination against people of color only when, in the Court’s view, the discrimination bears a strong likeness to the racism that was practiced during the pre–Civil Rights Era. When the Court encounters an instance of racial discrimination that bears this resemblance, it remedies the racial injury. Notably, it increasingly refuses to use the Equal Protection Clause to provide this relief, instead using other parts of the Constitution to remedy the injury. Be that as it may, the Court’s understanding of racism is woefully impoverished, and strategically so: it causes the Court to overlook devastating harms to people of color when those harms do not harken back to “old-school” racism. Further, the Court often fails to recognize discrimination against people of color that does, in fact, fit its own crabbed definition of racism. To add insult to injury, the Court does not require white claimants to allege racial injuries that remind of the pre–Civil Rights Era. Instead, it stands willing to remedy alleged racial discrimination against white claimants even when that discrimination takes more modern, more novel, more improvisatory forms.
This Foreword makes this argument in four Parts. Part I examines Dobbs and Bruen. The analysis of Dobbs shows that the Court failed to appreciate that the reversal of Roe is devastating to black people with the capacity for pregnancy.32 That is, the Court refused to recognize that allowing states to criminalize abortion care inflicts a racial injury on black people. The Court’s racial common sense rendered this injury invisible: through the Court’s eyes, the injury does not resemble what white supremacists did in the pre–Civil Rights Era. At the same time, conservative arguments that abortion is a form of genocide and a tool of eugenics resonated with the Roberts Court. Genocide and eugenics are classic — indeed, paradigmatic — forms of racist violence practiced during the pre–Civil Rights Era. Because the Court could see a resemblance between genocide and black people’s higher rates of abortion, the Court remedied the “injury” by reading abortion rights out of the Due Process Clause.
Similarly, the analysis of Bruen shows that the Court failed to appreciate that a broad interpretation of the Second Amendment that permits the proliferation of guns in public spaces will be devastating to black communities. That is, the Court refused to recognize that allowing guns to go unregulated will inflict a racial injury on black people. As in Dobbs, the Court’s racial common sense rendered this injury invisible: through the Court’s eyes, failure to regulate guns does not resemble what white supremacists did in the pre–Civil Rights Era. At the same time, the Court in Bruen perceived a racial injury in black people’s disarmament by gun regulations like those at issue in the case. The Court could see a similarity between the alleged harm those regulations inflict and the racial injury inflicted during the days of formal white supremacy, when black people were also subjected to disarmament. Because the conservative supermajority in Bruen perceived a parallel between the form that white supremacy took in the pre–Civil Rights Era and the harm that it believed “may issue” jurisdictions produced, it recognized the latter as racism. As such, the Court interpreted the Second Amendment to remedy this “injury.”
Part II examines several of the Court’s recent criminal procedure cases in which the Court used the Sixth Amendment to provide relief to black claimants. The sole reason for the black claimants’ success was that the Court saw resemblances between the alleged injury and the techniques of racism that were employed in the days of formal white supremacy. Indeed, the racism at issue in these cases was so closely tied to white supremacy that had the Roberts Court failed to provide relief, it might have lost whatever is left of its legitimacy.
Part III examines Trump v. Hawaii33 and Shelby County v. Holder.34 These cases reveal that although the Court pretends to be engaged in an objective inquiry into whether a claim of racial discrimination bears a significant likeness to the tools that white supremacists used to sustain the nation’s racial hierarchy in the pre–Civil Rights Era, the inquiry is profoundly politically motivated. Indeed, politics and the desire for an outcome that aligns with the Republican Party platform appear to overdetermine the inquiry. Reasonable observers have argued that the racial injury inflicted by the Muslim travel ban is virtually identical to the injury inflicted by the Japanese internment during World War II.35 Reasonable observers have argued that the racial injury inflicted by the forced desuetude of the Voting Rights Act of 196536 preclearance apparatus and the subsequent proliferation of techniques that make it difficult for unprivileged people to vote are virtually identical to the injury inflicted by the “tests and devices” that white supremacists once deployed to disenfranchise black people.37 Yet the Court has been unwilling to acknowledge the likeness.
To illustrate the contrast between what the Court requires of nonwhite and white claimants, Part IV analyzes two racial injuries that white claimants have alleged: affirmative action and disparate impact liability. This analysis reveals that the Court will provide relief to white claimants even when they have not alleged an injury that bears a resemblance to racial disenfranchisement during the pre–Civil Rights Era. The Court is willing to redress their racial injuries even when they have no apparent historical antecedent. A brief conclusion follows.
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* Professor of Law, UC Berkeley School of Law. Thanks to Kathy Abrams, Erwin Chemerinsky, Jonathan Feingold, Ian Haney López, Osagie Obasogie, Russell Robinson, Bertrall Ross, Lis Semel, and Reva Siegel, who offered truly brilliant feedback on drafts of this Foreword. Thanks as well to Tiffanie Obilor and Mia Uhunmwuangho for being such wonderful RAs. An extra special thanks is owed to Arni Daroy, whose superlative research assistance has greatly improved this Foreword. I owe a debt of gratitude to the Berkeley Law Library — specifically librarians I-Wei Wang, Edna Lewis, and Dean Rowan — for amazing research support. Thank you to the editors at the Harvard Law Review for giving me the honor of writing this Foreword. And, of course, thank you to mijn hartendief, mijn honing konijn, Gert Reynaert, for gamely listening to me talk about the October Term 2021 ad nauseam.