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Race Against the Court: The Supreme Court and Minorities in Contemporary America

Girardeau A. Spann
Copyright Date: 1993
Published by: NYU Press
Pages: 248
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    Race Against the Court
    Book Description:

    "Must reading for anyone who seeks a better understanding of the U.S. Supreme Court's role in race relations policy." - Choice "Beware! Those committed to the Supreme Court as the ultimate defender of minority rights should not read Race Against the Court. Through a systematic peeling away of antimajoritarian myth, Spann reveals why the measure of relief the Court grants victims of racial injustice is determined less by the character of harm suffered by blacks than the degree of disadvantage the relief sought will impose on whites. A truly pathbreaking work." - Derrick Bell As persuasive as it is bold. Race Against The Court stands as a necessary warning to a generation of progressives who have come to depend on the Supreme Court of the perils of such dependency. It joins with Bruce Ackerman's We, the People and John Brigham's Cult of the Court as the best in contemporary work on the Supreme Court. - Austin Sarat, William Nelson,Cromwell Professor of Jurisprudence and Political Science, Amherst College The controversies surrounding the nominations, confirmations, and rejections of recent Supreme Court justices, and the increasingly conservative nature of the Court, have focused attention on the Supreme Court as never before. Although the Supreme Court is commonly understood to be the guardian of minority rights against the tyranny of the majority, Race Against The Court argues that the Court has never successfully performed this function. Rather the actual function of the Court has been to perpetuate the subordination of racial minorities by operating as an undetected agent of majoritarian preferences in the political preferences. In this provocative, controversial, and timely work, Girardeau Spann illustrates how the selection process for Supreme Court justices ensures that they will share the political preferences of the elite majority that runs the nation. Customary safeguards that are designed to protect the judicial process from majoritarian predispositions, Spann contends, cannot successfully insulate judicial decisionmaking from the pervasive societal pressures that exist to discount racial minority interests. The case most often cited as the icon of Court sensitivity to minority rights, Brown v. Board of Education, has more recently served to lull minorities into believing that efforts at political self-determination are futile, fostering a seductive dependence and overreliance on the Court as the caretaker of minority rights. Race Against The Court demonstrates how the Court has centralized the law of affirmative action in a way that stymies minority efforts for meaningful political and economic gain and how it has legitimated the legal status quo in a way that causes minorities never even to question the inevitability of their subordinate social status. Spann contends that racial minorities would be better off seeking to advance their interests in the pluralist political process and proposes a novel strategy for minorities to pursue in order to extricate themselves from the seemingly inescapable grasp of Supreme Court protection. Certain to generate lively, heated debate, Race Against The Court exposes the veiled majoritarianism of the Supreme Court and the dangers of allowing the Court to formulate our national racial policy.

    eISBN: 978-0-8147-8899-8
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-x)
  4. Introduction
    (pp. 1-6)

    The present Supreme Court has been noticeably unreceptive to legal claims asserted by racial minorities. Although it is always possible to articulate nonracial motives for the Court’s civil rights decisions, the popular perception is that a politically conservative majority wishing to cut back on the protection of minority interests at majority expense now dominates the Supreme Court. In reviewing the work of the Court during its infamous 1988–89 term, U.S. LAW WEEK reported that “[a] series of civil rights decisions by a conservative majority of the U.S. Supreme Court making it easier to challenge affirmative action programs and more...

  5. PART ONE: Veiled Majoritarianism

    • CHAPTER 1 The Traditional Model of Judicial Review
      (pp. 9-18)

      Under the traditional model of judicial review, which is traceable to John Marshall’s seminal decision inMarbury v. Madison, the function of the Supreme Court is to protect the rights of minorities who are unable to protect themselves effectively in the pluralist political process. Racial minorities have typically been thought to be among those who require Supreme Court protection because their “discrete and insular” character precludes their effective participation in the political process. Although a variety of substantive process, and hybrid theories of judicial review have evolved as an elaboration upon the traditionalMarburymodel, all theories share the belief...

    • CHAPTER 2 The Majoritarian Court
      (pp. 19-26)

      Despite the aspirations of the traditional model, the Supreme Court is ultimately unable to protect minorities from the tyranny of the majority. In fact, the Court is institutionally incapable of doing anything other than reflecting the very majoritarian preferences that the traditional model requires the Court to resist. Because Supreme Court justices are socialized by the same majority that determines their fitness for judicial office, they will arrive at the bench already inculcated with majoritarian values. And none of the traditional safeguards can reliably prevent those values from controlling judicial decisions. The formal safeguards of life tenure and salary protection,...

    • CHAPTER 3 Infiltration of Principles
      (pp. 27-35)

      Many legal principles expressly incorporate majoritarian preferences into their substantive contents. As a result, such principles cannot be relied upon to insulate judicial decisionmaking from the desires of the majority. On the contrary, the principles themselves ensure that the will of the majority is what ultimately controls any minority claims that are subject to those principles. Surprisingly, the Supreme Court has expressly incorporated majoritarian preferences into constitutional principles, as it did inMcCleskey v. Kemp, even where the effect has been to permit the majority to define the content of racial minority rights. More subtly, the Supreme Court often incorporates...

    • CHAPTER 4 Selection of Principles
      (pp. 36-57)

      The process of principled adjudication begins with specification of the legal principles that govern proper resolution of a disputed issue. A variety of legal principles will arguably be relevant, but the Court must somehow decide which of the candidates actually apply. Selecting applicable principles is an act of loosely constrained discretion that once again creates opportunities for a judge’s personal attitudes to enter into the decision-making process. Where obviously controlling rules or precedents exist, the problem may appear to be insignificant, but in fact, serious difficulties often lurk beneath the surface of such apparent certainty. Moreover, in cases of first...

    • CHAPTER 5 Application of Principles
      (pp. 58-82)

      In theory, once a governing legal principle is identified, it eliminates the danger of majoritarian exploitation of minority interests because the governing principle rather than majoritarian-influenced judicial discretion will generate case outcomes. A legal principle can emanate from a constitutional provision, a statute, a regulation, or from common law precedents. But regardless of its source, proper application of a principle to the facts of a case, in accordance with the accepted tenets of logical analysis, will control the outcome of the case. Even if the principle does leave room for the exercise of some discretion, the sphere within which that...

  6. PART TWO: Perpetuating Subordination

    • CHAPTER 6 The Political Alternative
      (pp. 85-103)

      Contemporary minority attraction to judicial review has been premised on the belief that the framers’ political safeguards against factionalism could not adequately protect the interests of racial minorities who would effectively be under-enfranchised by their discrete and insular character.¹ Moreover, any effectiveness that the structural safeguards might initially have had was further called into question by the substantial dilution of those safeguards that occurred during the New Deal.² However, reexamination of these assumptions in light of the majoritarianism inherent in judicial review suggests that whatever their defects, the political safeguards hold more promise for contemporary racial minorities than continued reliance...

    • CHAPTER 7 Dependency
      (pp. 104-118)

      Brown v. Board of Education¹ is the case typically offered as evidence of the countermajoritarian capacity of the Supreme Court. In the face of massive popular resistance, the Court not only desegregated the public schools, but also invalidated the constitutional standard adopted byPlessy v. Ferguson² that tolerated separate-but-equal public facilities. Since Brown, racial minorities have concentrated their efforts at achieving equality on the Supreme Court, because the Court has appeared to be more receptive to minority claims of right than the representative branches of government. Despite the countermajoritarian rhetoric that has been cultivated by theBrowndecision, the case...

    • CHAPTER 8 Centralization
      (pp. 119-149)

      The law of affirmative action is the most significant body of law affecting contemporary race relations in the United States. The Supreme Court, however, has developed the legal doctrines that govern affirmative action in a way that adversely affects the interests of racial minorities. It has done this by insinuating itself into the political policymaking process that governs affirmative action, and by incorporating centralized rather than local standards into the regulatory framework that it has imposed upon that process. InCity of Richmond v. J A. Croson Co.,¹ the Court held that state and municipal affirmative action plans were subject...

    • CHAPTER 9 Legitimation
      (pp. 150-160)

      Racial minorities in the United States have suffered centuries of brutal inequality with remarkable quiescence. Slave rebellions were rare; race riots have been few and far between; and concerted minority political action has remained largely untried. Even recent minority political victories in majority voting districts have been unsuccessful at securing true minority participation in the political process, because the victorious minority candidates have had to strip their candidacies of anything other than diluted concern for racial issues in order to make themselves acceptable to majority voters.¹ As Chapter 7 has explained, minorities have become dependent upon the Supreme Court rather...

  7. CHAPTER 10 Summary and Conclusion
    (pp. 161-172)

    For racial minorities, judicial review has proven to be more of a curse than a blessing. Rather than protecting racial minority interests from the tyranny of the majority, the Supreme Court has done just the opposite. It has protected the majority from claims of equality by racial minorities. During the early history of the Supreme Court, the Court was fairly explicit in its sacrifice of minority interests for majoritarian gain. Whether the Court was abandoning the Cherokee Tribe in the face of majoritarian hostility as it did inCherokee Nation v. State of Georgiaitalic>,¹ denying citizenship to blacks in gratuitously...

  8. Notes
    (pp. 173-230)
  9. Bibliography
    (pp. 231-244)
  10. Table of Legal Authorities
    (pp. 245-252)
  11. Index
    (pp. 253-269)
  12. Back Matter
    (pp. 270-271)