Recognizing race

Columbia Law Review

Volumn 112, Issue 2, 2012, Pages 404-457

  Driver, Justin ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 84858172731     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (367)

1. 129 S. Ct. 2658 (2009).
2. Adam Liptak, Justices to Hear White Firefighters' Bias Claims, N.Y. Times, Apr. 10, 2009, at A1.
3. See David D. Kirkpatrick, A Judge's Focus on Race Issues May Be Hurdle, N.Y. Times, May 30, 2009, at A1 (reporting one judicial observer's opinion that "'[Sotomayor's] nomination and the Ricci case have brought racial quotas back as a national issue" (quoting Gary Marx, Executive Director, Judicial Confirmation Network).
4. For a prescient article exploring the potential tension between equal protection and Title VII's disparate impact doctrine
5. see Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 498 (2003).
6. See Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 73-78, 91-95, 414-19 (2009) (questioning of Judge Sotomayor by various Senators regarding Ricci)
7. id. at 488-89 (statement of Frank Ricci).
8. See, e.g., Lani Guinier & Susan Sturm, Trial by Firefighters, N.Y. Times, July 11, 2009, at A19 (suggesting Ricci signals need for a clear-eyed reassessment of our blind faith in entrenched testing regimes
9. Shelby Steele, Affirmative Action Is Just a Distraction, Wash. Post, July 26, 2009, at B4 (contending Ricci demonstrates "irrationality of disparate impact.
10. See, e.g., Michelle Adams, Is Integration a Discriminatory Purpose?, 96 Iowa L. Rev. 837, 842-43 (2011) (contending Ricci prohibits government from inflicting racial harm but does not necessarily prevent it from pursuing integration)
11. Cheryl I. Harris & Kimberly West-Faulcon, Reading Ricci: Whitening Discrimination, Racing Test Fairness, 58 UCLA L. Rev. 73, 73 (2010) (suggesting Ricci does not evaluate all claims of discrimination on equal grounds but rather "whitens" discrimination and "races" test fairness)
12. Helen Norton, The Supreme Court's Post-Racial Turn Towards a Zero-Sum Understanding of Equality, 52 Wm. & Mary L. Rev. 197, 229 (2010) ("The Court now, however, appears to treat a decision maker's attention to the disparities experienced by members of traditionally subordinated racial groups-that is, its antisubordination ends-as inextricable from an intent to discriminate against others, and thus sufficiently suspicious to demand justification.
13. Richard A. Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1344 (2010) (describing three ways to read Ricci and arguing Court's ruling treats disparate impact as inherently race-conscious theory that is susceptible to challenge under Equal Protection Clause)
14. Joseph A. Seiner & Benjamin N. Gutman, Does Ricci Herald a New Disparate Impact?, 90 B.U. L. Rev. 2181, 2181-82 (2010) (suggesting Ricci can be read to create new affirmative defense for employers facing claims of disparate impact)
15. Girardeau A. Spann, Disparate Impact, 98 Geo. L.J. 1133, 1135 (2010) (noting Ricci "appears to have commenced a campaign to eviscerate the racially disparate impact cause of action that was created by the employment discrimination prohibition of Title VII
16. Michael J. Zimmer, Ricci's "Color-Blind" Standard in a Race Conscious Society: A Case of Unintended Consequences?, 2010 BYU L. Rev. 1257, 1259 (arguing that Court established essentially "color-blind" standard of disparate treatment liability for Title VII).
17. Ricci v. DeStefano, 129 S. Ct. 2658, 2667-68 (2009).
18. Id. at 2668.
19. Id. (quoting joint appendix).
20. Id. at 2669 (quoting joint appendix).
21. Id. (emphasis added) (quoting joint appendix).
22. See, e.g., Rice v. Cayetano, 528 U.S. 495, 517 (2000) (Kenndy, J.) ("One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.
23. See Ricci, 129 S. Ct. at 2668-69 (discussing Lewis's belief that test was relevant).
24. Id. at 2669 (quoting joint appendix).
25. Id. (quoting joint appendix).
26. After racially describing Lewis initially in the facts section, the Court returned to Lewis in the analysis and elevated his testimony.
27. See id. at 2678 ("Of the outside witnesses who appeared before the CSB, only one, Vincent Lewis, had reviewed the examinations in any detail, and he was the only one with any firefighting experience. Lewis stated that the 'questions were relevant for both exams." (quoting joint appendix).
28. Petitioners' Brief on the Merits at 13, Ricci, 129 S. Ct. 2658 (Nos. 07-1428, 08-328), 2009 WL 453242.
29. See Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1775 (1993) (arguing colorblindness "ratifies existing white privilege by making it the referential base line.
30. E-mail from Janet Helms, Professor, Bos. Coll., to author (Feb. 18, 2011, 1:47 PM) (on file with the Columbia Law Review)
31. E-mail from Christopher Hornick, President, CWH Research, Inc., to author (Feb. 20, 2011, 10:50 AM) (on file with the Columbia Law Review).
32. At least one distinguished scholar has suggested that race enters the legal equation in only a narrow band of cases.
33. See Stephen L. Carter, When Victims Happen to Be Black, 97 Yale L.J. 420, 439 (1988) ("The law in its majestic neutrality takes no official note of the race of the victim unless the victim places race in issue, as for example in a claim of racial discrimination.
34. The history of racial recognition, however, contradicts this assessment, as courts have repeatedly recognized race in contexts where race appears to be either tangential or irrelevant to the underlying legal issue.
35. See infra text accompanying notes 68-71 (discussing judges' superfluous recognition of race).
36. Cf. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 8 (2003) (arguing that "constitutional law and culture are locked in a dialectical relationship, so that constitutional law both arises from and in turn regulates culture.
37. See Taunya Lovell Banks, Teaching Laws with Flaws: Adopting a Pluralistic Approach to Torts, 57 Mo. L. Rev. 443, 446-47 (1992) (examining racial recognition in area of torts)
38. Richard R.W. Brooks, Incorporating Race, 106 Colum. L. Rev. 2023, 2025-26 (2006) (corporations)
39. Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967-68 (2002) (Fourth Amendment)
40. Tracey Maclin, "Black and Blue Encounters"-Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 265 (1991) [hereinafter Maclin, Black and Blue]
41. noting that Supreme Court never mentioned race of black shooting victim in Fourth Amendment case of Tennessee v. Garner, 471 U.S. 1 (1985)
42. Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 340-41 (1998) [hereinafter Maclin, Race]
43. examining racial recognition in context of Fourth Amendment). At least one scholar has focused on the related, but conceptually distinct, notion of how lawyers, as opposed to judges, should deploy race in a particular doctrinal context.
44. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 Mich. L. Rev. 965, 999 (1997) (arguing in context of attorneys representing welfare recipients that "lawyers must struggle with whether, when, and how to mention race.
45. See Carbado, supra note 25, at 968-69 (contending Supreme Court's Fourth Amendment jurisprudence is insufficiently sensitive to race of criminal suspects and defendants)
46. Maclin, Black and Blue, supra note 25, at 265 ("Whatever the motivation, ignoring the impact of race does a disservice to blacks and the country as a whole. The problem of race-based excessive force by the police will not go away simply because the Court sticks its collective head in the sand.
47. Maclin, Race, supra note 25, at 340 ("Although the casual reader of the Court's Fourth Amendment opinions would never know it, race matters when measuring the dynamics and legitimacy of certain police-citizen encounters." (citation omitted)
48. see also T. Alexander Aleinikoff, The Constitution in Context: The Continuing Significance of Racism, 63 U. Colo. L. Rev. 325, 328 (1992) [hereinafter Aleinikoff, Context] ("[T]he persistence and power of racism ought to be seen as an important part of the social 'context' with which constitutional norms regarding equal protection and racial justice interact.
49. Regina Austin, "Bad for Business": Contextual Analysis, Race Discrimination, and Fast Food, 34 J. Marshall L. Rev. 207, 207 (2000) ("If race truly mattered, legal argument, writing, and scholarship would pay much more attention to context than it does today. Professor Brooks does not, admittedly, encourage courts to increase their racial recognition of corporations.
50. See Brooks, supra note 25, at 2092 ("The courts' recognition of the presence or absence of race in corporations should be avoided.
51. But his analysis elevates the bar for permitting courts to recognize race to an exceedingly high level.
52. See id. (arguing "[l]egal judgments about race should recognize race as minimally as possible.
53. See, e.g., Carbado, supra note 25, at 970 (advocating without qualification for interpretation of Fourth Amendment that would be "explicitly race-conscious. Beyond the racial recognition context, critical race theory often traffics in absolutism.
54. See Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 373 (1992) ("Black people will never gain full equality in this country.
55. Richard Delgado, Rodrigo's Roadmap: Is the Marketplace Theory for Eradicating Discrimination a Blind Alley?, 93 Nw. U. L. Rev. 215, 243 (1998) (arguing "race will always remain a separate and independent subordinating factor.
56. See Lino A. Graglia, Special Admission of the "Culturally Deprived" to Law School, 119 U. Pa. L. Rev. 351, 354 (1970) (contending that "the democratic ideal" requires "people not be classified-and neither taught nor expected to classify others-on the grounds of race
57. see also William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L. Rev. 775, 790 (1979) ("The state may neither use race in its own business nor may it encourage others to take it into account. Both are equally divisive and equally wrong. Colorblindness also has adherents in high places.
58. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 772 (2007)
59. Thomas, J., concurring) ("My view of the Constitution is Justice Harlan's view in Plessy: 'Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
60. Some scholars who appear sympathetic to the colorblindness ideal realize that forbidding the government from ever taking account of race is not only unworkable, but would also be unwise.
61. See Charles Fried, Metro Broadcasting, Inc. v. FCC: Two Concepts of Equality, 104 Harv. L. Rev. 107, 111 (1990) ("It is impossible to ignore racial differences entirely-pure color-blindness is too extreme a principle.
62. id. at 111 n.19 ("If a disease. overwhelmingly afflicts a particular ethnic group, it would be unreasonable to ignore that fact. If a criminal gang has an exclusive racial composition, it would be fanatical to require the government to ignore this fact in recruiting agents to infiltrate that gang.
63. For a thorough historical examination of cases where courts resolved contested issues of racial identity
64. see Ariela J. Gross, What Blood Won't Tell: A History of Race on Trial in America 14 (2008) (exploring why "legal institutions invested so much time and effort in determining racial boundaries.
65. Act of Feb. 18, 1875, ch. 80, 18 Stat. 316, 318 (amending Act of July 14, 1870, ch. 254, 16 Stat. 254, 256).
66. 260 U.S. 178, 194-95 (1922).
67. Id. at 198 (determining "appellant. is not Caucasian and therefore belongs entirely outside the zone on the negative side.
68. Id. (internal quotation marks omitted).
69. Id. (quoting Davidson v. New Orleans, 96 U.S. 97, 104 (1877).
70. United States v. Thind, 261 U.S. 204, 206 (1923) (internal quotation marks omitted).
71. Id. at 214-15.
72. Id. at 215 (noting racial differences in appearance would be apparent, even in subsequent generations).
73. 100 U.S. 235, 236 (1879).
74. Id at 235-36.
75. Id. The statute provided in relevant part: "[I]f such offender shall be unable to pay a sum at least equal to the just value or amount, whatever such payment shall fall short of the same shall be paid out of the treasury of the United States." Nonintercourse Act of 1834, ch. 161, § 16, 4 Stat. 729, 731 (codified as amended at 18 U.S.C. § 1160 (2006).
76. Nonintercourse Act of 1834, § 16, 4 Stat. at 731.
77. Perryman, 100 U.S. at 237.
78. Id. at 236, 238.
79. Id. at 236.
80. Id. at 237-38.
81. Id. at 238.
82. 442 U.S. 653 (1979).
83. Id. at 679 (Blackmun, J., concurring).
84. 25 U.S.C. § 194 (1976).
85. Wilson, 442 U.S. at 666-67. ("The word 'person'. is normally construed to include 'corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." (quoting 1 U.S.C. § 1 (1976).
86. The Court simply ignored the racial modifier, and instead noted that corporations were persons within the statute's meaning.
87. But Wilson's conclusion that the provision applied to the two corporations may caution somewhat against Professor Brooks's broad claim that the Supreme Court has uniformly denied that corporations possess racial identity.
88. See Brooks, supra note 25, at 2073 ("The U.S. Supreme Court has only twice addressed the possibility of corporate racial identity, denying it in both instances. Professor Brooks's generally illuminating and thorough article, however, does not mention Wilson. In the context of 25 U.S.C. § 194, at least, the Court seems to have concluded that all non-Indian corporations are "white."
89. See Wilson, 442 U.S. at 667 & n.17 ("It stands to reason that. Congress was fully aware that [the provision] would be interpreted to cover artificial entities as well as individuals.
90. Wilson, 442 U.S. at 667 ("[I]n common usage, the term "person" does not include the sovereign, [and] statutes employing the phrase are ordinarily construed to naturalizaexclude it." (alterations in original) (quoting United States v. Cooper Corp., 312 U.S. 600, 604 (1941).
91. Id. at 669 ("[Section] 194 contemplates the non-Indian's shouldering the burden of persuasion.
92. Id. at 666 n.16 (rejecting comparison to Perryman because that "case dealt with another provision of the 1834 Nonintercourse Act, § 16, and there were distinct grounds in the legislative history indicating that the term 'white person' as used in § 16 did not include a Negro.
93. Id. at 679-80 (Blackmun, J., concurring) (arguing majority must make explicit which assumption it is using to apply § 194 to private petitioners).
94. Id. at 680.
95. Id. at 680-81.
96. See Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809, 817 (2007) (noting racial restrictions on naturalization were not eliminated until after World War II).
97. See, e.g., Wilson, 442 U.S. at 658 (describing 25 U.S.C. § 194 (1976) as "a 145-yearold, but seldom used, statute.
98. Appellate courts do not, of course, have an unlimited ability to recognize race. The record typically reflects the race of a party or other individual before appellate courts opt to do so.
99. 100 U.S. 303, 308 (1879) (arguing that prohibition on entire race serving on juries would be unconstitutional if applied to whites).
100. 427 U.S. 273, 286-87 (1976).
101. I do not suggest, of course, that people cannot racially discriminate against members of their own race, nor do I suggest that such treatment is beyond law's reach. For an exploration of these issues
102. see generally Trina Jones, Shades of Brown: The Law of Skin Color, 49 Duke L.J. 1487 (2000) (discussing discrimination based on color as opposed to race and describing law's role in countering such discrimination).
103. Los Angeles County v. Rettele, 550 U.S. 609, 609-10 (2007) (per curiam) (emphasis added).
104. Id. at 610.
105. Id. (emphasis added).
106. See, e.g., id. at 611 ("All three. are Caucasians.
107. Some observers, for instance, might view the claim in Rettele as being predicated upon a perceived entitlement to avoid unwanted encounters with the police. The Supreme Court, for its part, was unimpressed by the court of appeals' conclusion that "'[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies' safety." Id. at 613 (alterations in original) (quoting Rettele v. Los Angeles County, 186 F. App'x 765, 766 (9th Cir. 2006).
108. In a remarkable passage striking a blow for racial equality, the Court retorted: We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity.
109. See infra Part II.A (discussing asymmetrical invocation of race in opinions).
110. For an argument that racial considerations animated the Court's intervention in criminal procedure
111. see Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48, 49 (2000).
112. 287 U.S. 45, 49 (1932) (identifying petitioners as black in opening sentence)
113. See also Patterson v. Alabama, 294 U.S. 600, 601 (1935) (same)
114. Norris v. Alabama, 294 U.S. 587, 588 (1935) (same).
115. Powell, 287 U.S. at 49.
116. See generally James Goodman, Stories of Scottsboro (1995) (analyzing various accounts of Scottsboro case and placing them in context of 1930s Alabama).
117. Brown v. Mississippi, 297 U.S. 278 (1936).
118. Id. at 284 (emphasis added) (quoting Brown v. State, 161 So. 465, 471 (Miss. 1935) (Griffith, J., dissenting).
119. See Klarman, supra note 80, at 53 (describing Supreme Court's expanded interpretation of Due Process Clause in state criminal cases where it had previously been narrowly construed).
120. See, e.g., Fikes v. Alabama, 352 U.S. 191, 193 (1957) ("It is, of course, highly material to the question before this Court to ascertain petitioner's character and background. He is a Negro, 27 years old in 1953, who started school at age eight and left at 16 while still in the third grade.
121. 384 U.S. 436 (1966).
122. See Burt Neuborne, The Gravitational Pull of Race on the Warren Court, 2010 Sup. Ct. Rev. 59, 85 ("Perhaps the clearest evidence of the gravitational pull of race on Warren Court constitutional doctrine was in the areas of criminal law and procedure.
123. Louis Michael Seidman, Brown and Miranda, 80 Calif. L. Rev. 673, 678 (1992) ("Both supporters and opponents of Miranda understood that, in large measure, the crime problem was the race problem. For an argument contending that judicial concern about police harassment of gay men may have also played a role in shaping modern criminal procedure
124. see David Alan Sklansky, "One Train May Hide Another": Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875, 896-931 (2008).
125. Miranda, 384 U.S. at 457.
126. Id. Relatedly, Warren also recognized racial salience in observing that "custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Id. at 455.
127. In the footnote accompanying this point, moreover, Warren noted the potential connection between interrogation methods and false confessions: "The most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed." Id. at 455 n.24.
128. Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court-A Judicial Biography 591 (1983) (quoting early draft of Chief Justice Warren's opinion).
129. Id. (quoting Memorandum from Justice William J. Brennan, Jr. to Chief Justice Earl Warren (May 11, 1966).
130. See Strauder v. West Virginia, 100 U.S. 303, 308 (1879) (contending "[i]f in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service" such statute would violate equal protection).
131. 488 U.S. 469 (1989).
132. Id. at 477-79 (describing Richmond's Minority Business Utilization Plan).
133. 448 U.S. 448, 492 (1980) (upholding "minority business enterprise" provision of Public Works Employment Act of 1977, Pub. L. No. 95-28, tit. 1, § 103, 91 Stat. 116, 116-17 (codified at 42 U.S.C. § 6705(f)(2) (2006).
134. Id. at 495 (quoting United States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938)
135. John Hart Ely, Democracy and Distrust 170 (1980).
136. Id. at 495-96.
137. Id. at 496 (quoting John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 739 n.58 (1974).
138. See John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 Stan. L. Rev. 607, 621 (1998) ("A central theme of our Constitution and critical function of our judiciary is the preclusion, not the privileging, of self-dealing maneuvers on the part of incumbents seeking to perpetuate their incumbency or otherwise promote the fortunes of their party." (footnote omitted).
139. Justice Alito's concurring opinion in Ricci is, not insignificantly, driven by New Haven's racial atmospherics in general and concerns about self-dealing in particular. Ricci v. DeStefano, 129 S. Ct. 2658, 2684-88 (2009) (Alito, J., concurring).
140. Given that concerns about self-dealing motivated at least some justices in the Ricci majority, this may help to explain Justice Kennedy's decision in the case to draw Ricci's governing standard directly from Croson.
141. See id. at 2675 (majority opinion) ("The Court has held that certain government actions to remedy past racial discrimination-actions that are themselves based on race-are constitutional only where there is a 'strong basis in evidence' that the remedial actions were necessary." (quoting Croson, 488 U.S. at 500).
142. During oral argument regarding Louisville, Kentucky's school integration program in 2006, Justice Scalia seemed to suggest that racial motives-either benign or malignant-could be discerned from knowing the race of decisionmakers. Solicitor General Paul Clement suggested that, even allowing that the school board's goal of achieving greater integration was "benign," its motivation did not mean that the Court should scrutinize the program less than strictly. Oral Argument at 25:38, Meredith v. Jefferson Cnty. Bd. Of Educ., 548 U.S. 938 (2006) (No. 05-915), available at http://www.oyez.org/cases/2000-2009/2006/2006_05_915/argument (on file with the Columbia Law Review).
143. Justice Scalia was not, however, prepared to accept that the school board's plan stemmed from good intentions: "Do we know the race of the school board here? I mean, that was not-how do we know these are benign school boards? Is it stipulated that they are benign school boards?" Id. at 26:03.
144. 322 U.S. 143, 155-56 (1944).
145. Id. at 173 (Jackson, J., dissenting).
146. 274 U.S. 200, 207 (1927) (upholding Virginia statute providing for sterilization of inmates deemed deficient in order to promote welfare of patient and society).
147. Id. For an argument attacking the veracity of Holmes's factual predicate
148. see generally Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (2008) (discussing history of eugenics and criticizing decision in Buck v. Bell).
149. Buck, 274 U.S. at 205.
150. See Mary L. Dudziak, Oliver Wendell Holmes as a Eugenic Reformer: Rhetoric in the Writing of Constitutional Law, 71 Iowa L. Rev. 833, 843-44 (1986) ("During the early twentieth century, many shared Holmes' belief that science could breed a better race. The science of improving 'the race' by breeding was the science of eugenics." (footnote omitted).
151. See generally J.H. Curle, Our Testing Time: Will the White Race Win Through? (1926) (contending that white race must avoid degeneration by preventing reproduction of unfit members of race).
152. F. Scott Fitzgerald, The Great Gatsby 12-13 (Scribner 2004) (1925) (quoting Buchanan extolling virtues of book entitled The Rise of the Colored Empires).
153. Lombardo, supra note 107, at 134 (quoting Deposition of Harry Laughlin, Transcript of Record at 41, Buck, 274 U.S. 200 (No. 292).
154. Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics 29, 185 n.37 (2008) (quoting Buck, 274 U.S. at 202).
155. 88 A. 963, 966 (N.J. 1913).
156. Id. Professor Nourse has suggested that this roundabout language may refer to the South. Nourse, supra note 114, at 29 (interpreting court's language as "presumably" referring to South). History would prove the New Jersey Supreme Court prescient regarding sterilization's impact on blacks.
157. See id. at 158 ("In the 1970s, for example, one federal court found that over 100,000 people had been sterilized under federal health and welfare programs, and one study found that over half of them were black." (citations omitted).
158. 539 U.S. 461, 485-91 (2003) (rejecting district court's application of law)
159. see also Pamela S. Karlan, Georgia v. Ashcroft and the Retrogression of Retrogression, 3 Election L.J. 21, 21 (2004) (discussing how case departed from prior section 5 analyses).
160. Ashcroft, 539 U.S. at 471.
161. Id. at 469.
162. Id. at 469-70 (alteration in original) (quoting plaintiffs' exhibits). The Court also seems to have relied upon readers' racial (and historical) awareness of another supporter of Georgia's redistricting plan, U.S. Congressman John Lewis. Lewis was, of course, one of the genuine heroes of the civil rights movement.
163. See, e.g., Taylor Branch, Parting the Waters: America in the King Years 1945-1964, at 379-80 (1988) (describing Lewis's involvement in civil rights sit-ins).
164. But Ashcroft initially identified him merely as "Lewis, who represents the Atlanta area." Ashcroft, 539 U.S. at 472. Toward the opinion's crescendo, however, the Court does have Lewis speak on behalf of black voters and portrays its decision as advancing Lewis's conception of the civil rights movement's goal of "creating the beloved community."
165. Id. at 489-91.
166. Georgia v. Ashcroft, 195 F. Supp. 2d 25 (D.D.C. 2002), vacated, 539 U.S. 461.
167. Id. at 29.
168. Ashcroft, 539 U.S. at 474-75.
169. See Diversity on the Bench, Fed. Judicial Ctr., http://www.fjc.gov/servlet/nDsearch?race=African+American (on file with the Columbia Law Review) (last visited Oct. 20, 2011) (listing Judges Edwards and Sullivan as African American).
170. At least one of the black judges who served on the special three-judge panel may not have minded if the Supreme Court had recognized his race for the idea that it provides him with a racialized judicial perspective.
171. See Harry T. Edwards, Race and the Judiciary, 20 Yale L. & Pol'y Rev. 325, 329 (2002) ("If I sometimes bring unique perspectives to judicial problems-perspectives that are mine in whole or in part because I am black-that is a good thing. [J]udges' different professional and life experiences have some bearing on how they confront various problems that come before them.
172. See supra text accompanying notes 12-22 (describing effect of Justice Kennedy's decision to identify one witness's race while omitting mention of other witnesses' race).
173. 538 U.S. 343 (2003).
174. Va. Code Ann. § 18.2-423 (2009), invalidated by Black, 538 U.S. 343.
175. Black, 538 U.S. at 367-68.
176. Id. at 350.
177. Id. (quoting joint appendix).
178. Id. at 348 (quoting joint appendix).
179. Id. at 348-49 (quoting joint appendix).
180. Id. at 349 (quoting joint appendix).
181. Id. at 347. Black did, however, invalidate the Virginia statute at issue because it deemed unconstitutional the statute's provision that found cross burning served as prima facie evidence of intent to intimidate.
182. Id. at 347-48.
183. See, e.g., Klan Active in Mobile: Burns Cross at Home of White Woman Backing Negro Pupil, N.Y. Times, Sept. 19, 1956, at 20 ("About 100 horn-blaring, shouting members of the Ku Klux Klan burned a ten-foot cross last night at the home of a white woman who is trying to get a Negro child admitted to a white public school.
184. Black, 583 U.S. at 388 (Thomas, J., dissenting). Justice Thomas's opinion does not always demonstrate this overly circumscribed conception of who may feel threatened by cross burning. See id. at 391 ("But the perception that a burning cross is a threat and a precursor of worse things to come is not limited to blacks.
185. For an argument suggesting that Justice Thomas's race caused his colleagues to defer to his views on cross burning in Black
186. see Guy-Uriel Charles, Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?, 93 Geo. L.J. 575, 577 (2005).
187. See Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1788-1801 (1989) (arguing against legitimacy of racial standing in legal scholarship).
188. Black v. Commonwealth, 553 S.E.2d 738, 748 (Va. 2001) (Hassell, J., dissenting).
189. See Margalynne J. Armstrong & Stephanie M. Wildman, Teaching Race/Teaching Whiteness: Transforming Colorblindness to Color Insight, 86 N.C. L. Rev. 635, 671 (2008) ("The norm of whiteness continues to permeate U.S. society.
190. See Brooks, supra note 25, at 2092 (suggesting courts should racially identify "as minimally as possible.
191. Cf. Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1436 (1988) (contending remedy for finding capital punishment violated Equal Protection Clause could conceivably require executing more people who claimed lives of black victims, rather than abolishing death penalty).
192. Justices have previously recognized race in instances where doing so serves, in part, to reveal that whites can be fierce advocates in the cause for racial justice. In a 1961 case arising from an individual's refusal to testify before the House Un-American Activities Committee, Justice Black-writing for Chief Justice Warren, Justice Douglas, and himself-began his dissenting opinion by noting: "The petitioner in this case. has for some time been at odds with strong sentiment favoring racial segregation in his home State of Kentucky. A white man himself, the petitioner has nonetheless spoken out strongly against that sentiment." Braden v. United States, 365 U.S. 431, 438 (1961) (Black, J., dissenting).
193. For a discussion of the dangers of ossification, see infra Part III.A.2.
194. See supra text accompanying notes 96-102 (discussing Croson and Court's reliance on Professor Ely's discussion of laws enacted by majority-black legislatures).
195. Fullilove v. Klutznick, 448 U.S. 448, 453-54 (1980) (discussing legislative history of statute requiring "minority business enterprises" to receive ten percent of public works grants).
196. Writing a decade before Croson, Professor Van Alstyne registered a particularly allergic reaction to this mode of inquiry.
197. See Van Alstyne, supra note 28, at 800-01 ("[S]urely it would be objected that it is the worst sort of racism to suppose that a plan inaugurated by a predominantly black elected body is more suspect than an identical plan inaugurated by a predominantly white one.
198. Cf. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1104 n.205 (1991) ("If the concern of the Court [in Croson] was the ability of minorities to dominate local governing units, it overestimated the power of black officials in a white economy and underestimated the power of minority blocs in Congress (Fullilove being a prime example).
199. 497 U.S. 547 (1990) (addressing FCC's "minority preference policies.
200. See Gratz v. Bollinger, 539 U.S. 244, 253-57 (2003) (discussing development of undergraduate admissions guidelines)
201. Grutter v. Bollinger, 539 U.S. 306, 312-16 (2003) (describing formation of law school admissions policy).
202. Not surprisingly, Professor Ely's article was principally dedicated to exploring instances where white decisionmakers enacted affirmative action programs to the detriment of other whites.
203. See John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 727 (1974) (contending "'special scrutiny' is not appropriate when White people have decided to favor Black people at the expense of White people.
204. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv. L. Rev. 802, 832 (1982) ("There is no reason why we cannot ask each Justice to develop a principled jurisprudence and to adhere to it consistently. What we cannot do is ask the same of the Court, as an institution.
205. 1 The New Shorter Oxford English Dictionary on Historical Principles 1135 (Lesley Brown ed., 4th ed. 1993).
206. See, e.g., Connecticut v. Johnson, 460 U.S. 73, 76 (1983) (noting "[r]espondent, who is black, remarked that he had 'never had a white woman before" prior to sexually assaulting a woman, where underlying case involved jury instructions unrelated to sexual assault (quoting Transcript of Record at 50, 262, Johnson, 460 U.S. 73 (No. 81-927).
207. 467 U.S. 649 (1984)
208. see also Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 19 (2010) (describing Justice Rehnquist's approach in Quarles).
209. Quarles, 467 U.S. at 651-52 (emphasis added).
210. Id. at 652.
211. Id. at 651.
212. See Daniel M. Katz, Institutional Rules, Strategic Behavior, and the Legacy of Chief Justice William Rehnquist: Setting the Record Straight on Dickerson v. United States, 22 J.L. & Pol. 303, 304 (2006) ("Miranda had been a pillar of the Warren Court revolution, and Chief Justice Rehnquist previously varied from meek support to outright dissention from the 1966 ruling.
213. But see Dickerson v. United States, 530 U.S. 428, 443 (2000) (Rehnquist, C.J.) ("Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.
214. See supra notes 156-158 and accompanying text (explaining gratuitousness in opinions).
215. Quarles, 467 U.S. at 674 (Marshall, J., dissenting).
216. 865 F.2d 849 (7th Cir. 1989).
217. See, e.g., Dan B. Dobbs et al., Torts and Compensation 255-59 (6th ed. 2009) (using Wassell to examine comparative fault)
218. David W. Robertson et al., Cases and Materials on Torts 353-62 (4th ed. 2011) (same).
219. See, e.g., Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413, 1434-37 (1999) (criticizing Wassell's implications for rape victims)
220. Neal Kumar Katyal, Architecture as Crime Control, 111 Yale L.J. 1039, 1114-15 (2002) (contending Wassell-type calculations of causation will be "very resource-intensive" and costly, discouraging many victims from suing).
221. Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269, 282-86, 291 (1994)
222. see infra notes 197-201 and accompanying text (critiquing Professor Kastely's argument).
223. Wassell, 865 F.2d at 850.
224. Id. at 850-51.
225. Id. at 851.
226. Id. (emphasis added).
227. Id. at 852.
228. Id. at 852, 856.
229. Id. at 852.
230. Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 Sup. Ct. Rev. 1, 8.
231. See Wassell, 865 F.2d at 855 ("Everyone, or at least the average person, knows better than to open his or her door to a stranger in the middle of the night.
232. See Richard Thompson Ford, The Race Card: How Bluffing About Bias Makes Race Relations Worse 9-10 (2008) (referring to "notorious ad campaign that many felt exploited racial bigotry.
233. See Dana Milbank, Unleashed, Palin Makes a Pit Bull Look Tame, Wash. Post, Oct. 7, 2008, at A3 (reporting McCain instructed his campaign staff that "racially explosive attacks related to Obama's former pastor, the Rev. Jeremiah Wright, [were] off limits.
234. See Kastely, supra note 170, at 291 (noting "the particular case of rape of a white woman by a black man has such a powerful history and continuing presence in the narratives of white supremacy that a judge would draw attention to race in cases in which that story could be re-told and re-affirmed.
235. Id. at 285.
236. Id. (quoting Wassell, 865 F.2d at 751).
237. Id. at 283, 286. Professor Kastely is not the only academic who has asserted that Posner suffers from untoward racial bias.
238. See Jerome McCristal Culp, Jr., To the Bone: Race and White Privilege, 83 Minn. L. Rev. 1637, 1661 (1999) (criticizing what he labels "Judge Posner's racism.
239. Wassell, 865 F.2d at 851.
240. John Bartlett, Familiar Quotations 570 (Justin Kaplan ed., 16th ed. 1992) (attributing this phrasing to Sigmund Freud).
241. See David Cole, Can Our Shameful Prisons Be Reformed?, N.Y. Rev. Books, Nov. 19, 2009, at 41, 41 ("The correlation of race and crime in the public's mind reinforces prejudice that affects every African-American.
242. The difficulty of talking openly about race is well-illustrated by an unusually testy exchange between Justice Ginsburg and Justice Scalia that reportedly occurred during the Court's deliberations regarding Bush v. Gore. Taking exception to her conservative colleagues' invocation of the Equal Protection Clause to halt the Florida recount, Justice Ginsburg contended that the 2000 election's actual Equal Protection Clause violation arose not from the Florida Supreme Court's opinion. Instead, in a footnote, Justice Ginsburg pointed to press accounts suggesting that the votes of many black Floridians had, in effect, been suppressed. When Justice Scalia read the footnote, he promptly sent his dear friend a strongly-worded memorandum for Justice Ginsburg's eyes only, contending that the footnote succeeded in "fouling our nest" and amounted to nothing less than "Al Sharpton tactics." In response, Justice Ginsburg omitted the footnote from her final draft.
243. See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 173-74 (2007) (recounting story of Ginsburg's footnote).
244. For a thoughtful examination of frankness from the bench
245. see Micah Schwartzman, Judicial Sincerity, 94 Va. L. Rev. 987, 989-91 (2008) (articulating and defending principle of judicial sincerity).
246. 432 U.S. 98 (1977).
247. Id. at 99.
248. For a helpful overview of how Brathwaite fits into the suggestive identification doctrine more broadly
249. see Jennifer E. Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure, 110 Colum. L. Rev. 1002, 1038-43 (2010) (analyzing Brathwaite's implications).
250. Brathwaite, 432 U.S. at 99-100.
251. Id. at 101 (quoting trial transcript).
252. Id. at 115 (quoting Brathwaite v. Mason, 527 F.2d 363, 371 (2d Cir. 1975).
253. See, e.g., Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934, 952 n.107 (1984) (identifying Brathwaite as "[t]he only reference by the Court to witness-defendant racial congruence.
254. See id. at 942-43 (noting laboratory studies reveal "it was common for the ownrace/other-race recognition rates to differ by thirty percent. [O]ne study reported that people who tried to identify persons of another race made four times as many errors as those who attempted to identify members of their own race." (citations omitted).
255. See, e.g., id. at 957-85 (discussing potential safeguards).
256. See, e.g., Aleinikoff, Context, supra note 26, at 328-30 (arguing "focusing on racism can provide a powerful and sensible basis for anti-discrimination doctrine
257. Austin, supra note 26, at 207 (claiming racial context is essential to courts providing adequate relief)
258. Carbado, supra note 25, at 964-66 (arguing recognition of Supreme Court's role in constructing race in Fourth Amendment context would illuminate its complicity with racist police practices).
259. See Lani Guinier & Gerald Torres, The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy 11 (2002) (arguing distress of racial minorities offers warning sign of "a danger that threatens us all.
260. Cf. Heather K. Gerken, Justice Kennedy and the Domains of Equal Protection, 121 Harv. L. Rev. 104, 106 (2007) (claiming "it is when Justice Kennedy stops talking directly about race that he says something new about it.
261. 360 U.S. 45, 45 (1959) (describing constitutional challenge to state literacy test).
262. 383 U.S. 663, 664 (1966) (outlining suit against state's poll tax).
263. See Lassiter, 360 U.S. at 45 (identifying Lassiter as "a Negro citizen of North Carolina.
264. Id. at 46 (quoting N.C. Gen. Stat. § 163-28 (1957).
265. Id. at 53.
266. Id. at 53-54.
267. Id. at 54.
268. Brief for Appellant at 3, Harper v. Harrison, 383 U.S. 663 (1966) (No. 655), 1965 WL 115352.
269. Id. at 3-4.
270. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 n.3 (1966) ("While the 'Virginia poll tax was born of a desire to disenfranchise the Negro,' we do not stop to determine whether on this record the Virginia tax in its modern setting serves the same end." (quoting Harman v. Forssenius, 380 U.S. 528, 543 (1965).
271. Id. at 668.
272. Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 53 (1959).
273. Lassiter did, however, allow that a literacy requirement could conceivably afford the decisionmaker so much discretion in its application as to make it vulnerable to racial challenge.
274. Id. (distinguishing from literacy test found in earlier case to be "merely a device to make racial discrimination easy" due to "the great discretion it vested in the registrar" (citing Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd, 336 U.S. 933 (1949) (per curiam).
275. See Ford, supra note 195, at 33 (noting "greater disagreement as to what counts as racism" after civil rights movement).
276. See William Julius Wilson, More than Just Race: Being Black and Poor in the Inner City 3-4 (2009) (arguing social structure and culture are two important factors in persistence of racialized underclass)
277. William Julius Wilson, Race-Specific Policies and the Truly Disadvantaged, 2 Yale L. & Pol'y Rev. 272, 275 (1984) ("[T]he factors associated with the growing woes of low-income blacks are exceedingly complex and go beyond the narrow issue of contemporary discrimination.
278. This method of racial inversion owes a debt to the "reversing the groups" test proposed by Professor Strauss as a method of exposing discriminatory intent under the Equal Protection Clause.
279. See David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 956-59 (1989) ("A court applying the discriminatory intent standard should ask: suppose the adverse effects of the challenged government decision fell on whites instead of on blacks, or on men instead of on women. If [the decision would have been different], then the decision was made with discriminatory intent.
280. See supra text accompanying notes 88-94 (discussing racial recognition in Miranda).
281. Miranda v. Arizona, 384 U.S. 436, 457 (1966).
282. See supra note 89 and accompanying text (discussing scholars' connection between criminal justice issues and racial equality).
283. Suggesting that race was more salient in the 1960s than it is today should not, of course, be confused for suggesting that racial considerations now lack all salience.
284. This same set of questions merits being posed with respect to several criminal cases involving confessions during the 1960s.
285. In Sims v. Georgia, for instance, the Court in 1967 recognized Isaac Sims Jr.'s race in a case alleging that he, a black man, had raped a white woman. 385 U.S. 538, 538 (1967).
286. Although Sims had confessed to the crime, he had done so only after "he was knocked down, kicked over the right eye and pulled around by his private parts" with sufficient force that even 2-3 weeks after the incident he was, in his words, "'paining a right smart."
287. Id. at 540-41 (quoting petitioner).
288. In Beecher v. Alabama, also decided in 1967, the Court recognized race when it invalidated a confession that had been elicited under perhaps even more dire circumstances than those that had plagued Sims. 389 U.S. 35 (1967) (per curiam).
289. Beecher, "a Negro convict in a state prison, escaped from a road gang in Camp Scottsboro, Alabama,"
290. and was suspected in the murder of a woman whose body was discovered close to the camp the day after Beecher escaped.
291. Id. at 35. The lower court had admitted Beecher's confessions in the face of truly stunning (and uncontradicted) facts.
292. Id. At 36-38. Beecher orally confessed after being shot in the leg, having a loaded pistol pointed at his face while a rifle was pointed at his head, and a gunshot being discharged next to his ear.
293. Id. at 36. Beecher's written confessions came during the course of a "90-minute 'conversation" that occurred while Beecher was in a morphine-induced haze.
294. Id. at 36-37. Beecher also reveals the fascinating way in which subsequent judges sometimes echo an earlier opinion's racial recognition-perhaps unthinkingly.
295. In 2004, nearly forty years after the Court decided Beecher, the Sixth Circuit issued an opinion recounting the case which retained the racial salience, even though its inquiry centered on whether the defendant experienced similar pain before confessing.
296. See Abela v. Martin, 380 F.3d 915, 928 (6th Cir. 2004) ("Beecher involved an African-American petitioner accused of raping and killing a white woman.
297. The Court was probably mainly motivated to issue a per se rule in Miranda by administrative ease. For an argument laying out the benefits of judicially articulated rules
298. see Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178-79 (1989) (contending uncertainty surrounding judicial standards makes rules-based approach preferable). It may, alas, be more accurate to describe Miranda as offering an equally feeble rule for protecting individuals of all different races and economic backgrounds.
299. See David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 Va. L. Rev. 1229, 1259-60 (2002) ("It was apparent from the outset that the Miranda warnings. are at best an imperfect solution to the problem of involuntary confessions.
300. 350 F.2d 445 (D.C. Cir. 1965).
301. See, e.g., John P. Dawson et al., Contracts: Cases and Comment 693-97 (9th ed. 2008) (discussing unconscionability in Williams)
302. E. Allan Farnsworth et al., Contracts: Cases and Materials 497-501 (7th ed. 2008) (introducing section on unconscionability with discussion of Williams).
303. Williams, 350 F.2d at 448 ("We do not agree that the court lacked the power to refuse enforcement to contracts found to be unconscionable.
304. Id at 447.
305. Id. at 448.
306. Id. at 449.
307. Id. at 448 (quoting Williams v. Walker Thomas Furniture Co., 198 A.2d 914, 916 (D.C. 1964).
308. Id. (quoting Williams, 198 A.2d at 916).
309. In 2011 dollars, Williams's stereo would cost approximately $3650.
310. See, e.g., Julian S. Lim, Tongue-Tied in the Market: The Relevance of Contract Law to Racial-Language Minorities, 91 Calif. L. Rev. 579, 594 (2003) (criticizing Judge Wright's opinion for unrecognizing race because "[i]t effectively extinguishes the relevance of race, with the associated influences of racial perceptions and racist intents, from contract-law discourse
311. Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New Eng. L. Rev. 889, 929 (1997) (suggesting Court should have recognized Williams's race because it "may have contributed to the company's decision to tender the burdensome installment contract" (emphasis omitted).
312. But see Anthony R. Chase, Race, Culture, and Contract Law: From the Cottonfield to the Courtroom, 28 Conn. L. Rev. 1, 39 (1995) (lamenting inclusion of Williams in contract law canon because doing so "equat[es] African-Americans with the 'irresolute, feeble, or weak' and impl[ies] that the condition of blackness creates a need for protection by the paternalistic white power structure" (quoting Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & Econ. 293, 303 (1975).
313. See Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 Harv. L. Rev. 817, 823 (1987) ("You have to remember that in 1952 the District of Columbia was a southern city; it had separate black and white school systems. Negroes were barred from eating in downtown restaurants. The only places they could eat were in the black ghettos.
314. James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy 107 (2001) (noting some local whites referred to J. Skelly Wright as "Judas Wright" and as "a traitor to his class.
315. J. Skelly Wright, The Courts Have Failed the Poor, N.Y. Times Mag., Mar. 9, 1969, at 26.
316. Judges, it turned out, required no invitation at all to constrain contractual unconscionability.
317. See Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. Chi. L. Rev. 1203, 1290 (2003) (arguing for modifications to unconscionability doctrine that would "result in greater social welfare. than the doctrine as it is currently applied by courts.
318. For a critique of legal scholars who are insufficiently sensitive to the racial transformation that has occurred during recent decades
319. see Justin Driver, Rethinking the Interest-Convergence Thesis, 105 Nw. U. L. Rev. 149, 171-73 (2011) ("Contending that the existence of blacks today can be analogized to people who were literally (not metaphorically) denied their freedom or to people who had their liberty thoroughly circumscribed by Jim Crow minimizes the suffering of individuals who endured the yoke of unrelenting racial oppression.
320. See Jack M. Balkin, Brown v. Board of Education-A Critical Introduction, in What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision 3, 11 (Jack M. Balkin ed., 2001) (discussing what he refers to as "the 'anticlassification' or 'color-blindness' principle
321. id. (noting Justice Harlan's celebrated dissent in Plessy v. Ferguson "contains two distinct claims: first, that the Constitution is opposed to the maintenance of racial caste, group subordination, or second-class citizenship, and second, that the Constitution is colorblind and prohibits racial classifications
322. Gerken, supra note 219, at 119 (referring to "concern[ ] with the injury associated with racial classifications" as "the colorblindness view
323. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 Stan. L. Rev. 985, 988 (2007) ("By reactionary colorblindness I mean an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of constitutional hostility.
324. Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 Yale L.J. 1278, 1281 (2011) (referring to "a colorblind anticlassification principle.
325. The very first sentence of Professor Andrew Kull's book-entitled The Color-Blind Constitution-goes a long way toward demonstrating how legal academia has tended to merge anticlassification and colorblindness.
326. See Andrew Kull, The Color-Blind Constitution, at vii (1992) ("My object in this book is to discover the history of the argument that the United States Constitution prohibits (or should prohibit) racial classification by the agencies of government.
327. See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1472 (2004) (noting "anticlassification embodies the tradition's fundamental value, the value of individualism
328. see also infra text accompanying notes 272-273 (discussing Justice Kennedy's views of dangers of racial classification).
329. See, e.g., Suzanna Sherry, All the Supreme Court Really Needs to Know It Learned from the Warren Court, 50 Vand. L. Rev. 459, 479-80 (1997) (describing aspiration for "colorblind society.
330. The term "color-blind," of course, stretches back at least as far as Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) ("Our Constitution is color-blind.
331. Illinois v. Wardlow, 528 U.S. 119, 121, 125 (2000).
332. Brief for NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae Supporting Respondents at 2, Wardlow, 528 U.S. 119 (No. 98-1036), 1999 WL 606996.
333. Wardlow, 528 U.S. at 132 (Stevens, J., concurring in part and dissenting in part).
334. Id. at 132-33.
335. See, e.g., Maclin, Black and Blue, supra note 25, at 265 (criticizing Court in Tennessee v. Garner, 471 U.S. 1 (1985)-a case considering police officer's use of deadly force-for "never mention[ing] that Garner was black.
336. In subsequent writings, Professor Maclin has espoused a more robust view of the Court's ideal approach to recognizing race. Nevertheless, he has continued to portray racial classification as a foundational box to be checked, before courts perhaps move on to contemplate a case's broader racial implications.
337. See Maclin, Race, supra note 25, at 339-40 ("The majority opinion did not even acknowledge that Edward Garner, who was shot in the back of the head by a Memphis officer as he fled the scene of a burglary, was a skinny, unarmed black teenager.
338. 501 U.S. 429, 436-37 (1991).
339. Professor Janice Nadler has cast doubt on whether intercity bus passengers generally give consent voluntarily to police officers to search during bus sweeps.
340. See Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology comof Coercion, 2002 Sup. Ct. Rev. 153, 155 (observing empirical evidence suggests consent to search is often not voluntarily given in bus sweep situation "because a reasonable person would not be, under the totality of the circumstances, in a position to make a voluntary decision about consent.
341. Carbado, supra note 25, at 978
342. id. at 981 (criticizing Bostick for depicting defendant and police officers "without explicit racial reference
343. id. at 984-85 ("The more fundamental problem with Justice O'Connor's analysis is that it does not explicitly engage race. Throughout her opinion, race remains unspeakable. A more careful analysis would, at the very least, have racialized Bostick's interaction with the officers.
344. It seems worth noting here that racial recognition can sometimes perform multiple meanings for multiple audiences. Carbado wants Bostick to recognize race because he believes the racial context is pertinent and that doing so will ultimately serve the cause of racial equality. Some proponents of racial equality, however, could conceivably oppose racial recognition in Bostick on the ground that it would be gratuitous, furthering the association of blacks with drug dealing. In the context of racial recognition, thus, one person's pertinence can be another person's gratuitousness.
345. See Bostick, 501 U.S. at 441 n.1 (Marshall, J., dissenting) ("[T]he approach of passengers during a sweep [may not be] completely random. Indeed, at least one officer who routinely confronts interstate travelers candidly admitted that race is a factor influencing his decision whom to approach.
346. id. at 450 n.4 ("Insisting that police officers explain their decision to single out a particular passenger for questioning would help prevent their reliance on impermissible criteria such as race.
347. Brief for ACLU et al. as Amici Curiae Supporting Respondents at 18 n.19, Bostick, 501 U.S. 429 (No. 89-1717), 1990 WL 10013128.
348. See 532 U.S. 318, 372 (2001) (O'Connor, J., dissenting) ("[A]s the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual." (citing Whren v. United States, 517 U.S. 806 (1996).
349. 528 U.S. 495, 517 (2000)
350. see Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694, 1736-45 (2008) (contending dignity is one of Justice Kennedy's core constitutional values).
351. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (1989) (Kennedy, J., concurring in part) ("The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.
352. 127 S. Ct. 2738, 2788 (2007) (Kennedy, J., concurring in part and concurring in the judgment) (calling classification "inconsistent with the dignity of individuals in our society" while also claiming colorblindness "cannot be a universal constitutional principle.
353. Id. at 2797.
354. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). For an argument that the celebration of Harlan's Plessy dissent has been wildly excessive
355. see Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 Stan. L. Rev. 1, 2-3 (1991) ("A color-blind interpretation of the Constitution legitimates, and thereby maintains, the social, economic, and political advantages that whites hold over other Americans.
356. Parents Involved, 127 S. Ct. at 2792 (Kennedy, J., concurring in part and concurring in the judgment).
357. Id. at 2791-92.
358. Id. (identifying school siting decisions, drawing of school attendance zones, targeted recruiting of students and faculty, and tracking of enrollment and performance statistics by race as such measures).
359. See Lani Guinier, The Supreme Court, 2010 Term-Forward: Demosprudence Through Dissent, 122 Harv. L. Rev. 4, 35-39 (2008) (extolling Justice Breyer's oral and written dissents)
360. Goodwin Liu, The First Justice Harlan, 96 Calif. L. Rev. 1383, 1383 (2008) (referring to Justice Breyer's dissent as "eloquent
361. Owen Fiss, A Compelling Basis for Integration, Louisville Courier-J., Sept. 16, 2007, available at http://www.law.yale.edu/news/5617.htm (on file with the Columbia Law Review) (praising Justice Breyer's dissent as one for the ages). I should disclose here that I served as a law clerk to Justice Breyer during the Term when Parents Involved was decided.
362. Langston Hughes, The Negro Artist and the Racial Mountain, The Nation, June 23, 1926, at 692.
363. For a compelling overview of this period, see David Levering Lewis, When Harlem Was in Vogue (1981).
364. Carbado, supra note 25, at 978. 287.
365. Wassell v. Adams, 865 F.2d 849, 851 (7th Cir. 1989).
366. Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 45 (1959).
367. Virginia v. Black, 538 U.S. 343, 348 (2003).