Excerpted From: Yuvraj Joshi, Racial Time, 90 University of Chicago Law Review 1625 (October, 2023) (387 Footnotes) (Full Document)


YurajJoshi.jpegU.S. legal opinions routinely invoke the passing of time to limit measures that could otherwise advance racial equality. These opinions are particularly detrimental to the pursuit of racial justice because they reflect a dominant perspective on time. White Americans tend to perceive greater progress toward racial equality than Black Americans, and more progress than has actually been achieved, and they often feel resentment toward periods of racial progress. These assumptions and feelings create the foundation of the United States' dominant perspective on time.

The effects of these biased perspectives on time are poignantly illustrated in Supreme Court cases around affirmative action. In June 2023, the Court struck down the race-sensitive admissions programs at Harvard College and the University of North Carolina (UNC). Writing for the Court, Chief Justice John Roberts referenced Justice Sandra Day O'Connor's prediction from the 2003 opinion in Grutter v. Bollinger that in twenty-five years, “the use of racial preferences [would] no longer be necessary.” But evidence suggests that an end to race-sensitive admissions in the United States is premature. The racial opportunity gap in education that Justice O'Connor thought would dissipate by 2028 has endured. Ending race-sensitive admissions processes would decrease the enrollment of Black and Latinx applicants, and increase the enrollment of white applicants, more than any other group.

Meanwhile, time has also been invoked to advance dominant political interests in voting rights cases. When striking down key equality-seeking provisions of the 1965 Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice Roberts expressed frustration that “[n]early fifty years later, [Sections 4 and 5 of the Act] are still in effect ... and are now scheduled to last until 2031.” He considered this timeframe excessively long on the basis that modern voting discrimination practices were less egregious than the “extraordinary problem” of the past. “Nearly fifty years later, things have changed dramatically,” Chief Justice Roberts declared, detailing how Southern states had progressed while dismissing current forms of racist vote-distorting practices, like racial gerrymandering.

Chief Justice Roberts's perspective on time in Shelby County facilitated the proliferation of facially neutral laws that disproportionately prevent minorities from voting. Following this decision, Alabama restricted voting for its Black residents by requiring photo identification to vote while simultaneously closing dozens of driver's license offices, several of which were located in counties representing the highest percentages of Black voters. North Carolina introduced one of the most restrictive voting laws in the country, and Texas restored a voter identification law that had been blocked under the 1965 Voting Rights Act. A decade later, similar laws have been enacted in several jurisdictions previously covered by the Act, as well as in other states where minority votes present a threat to dominant interests.

Using Shelby County and other examples, this Article argues that U.S. legal opinions enact dominant interests in time, or what political theorist Charles Mills calls “white time.” By inscribing a dominant group's experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines for racial remedies and “neutral” time standards that disproportionately burden minorities. Achieving racial equality requires challenging the bias of dominant “white time” and recognizing the validity of subordinated nonwhite times.

To make this argument, this Article synthesizes perspectives from multiple disciplines, incorporates insights from Black history and political thought, and then applies these insights to earlier cases such as Grutter and Shelby County as well as more recent ones like Brnovich v. Democratic National Committee, Allen v. Milligan, and Students for Fair Admissions v. Harvard (SFFA). While previous scholarship has explored the logical role played by time in equal protection jurisprudence, this Article examines the influence of racialized experiences and perceptions of time. Although its primary focus is on equal protection jurisprudence, the Article also invites a broader discussion of “racial time” throughout the U.S. legal system.

Part I introduces the concept of racial time, drawing from research in African American studies, political theory, and other disciplines. This research has explored how perceptions of time can differ based on distinctive group experience. Scholars argue that Black perspectives on time are shaped by consistently having to wait for the enjoyment of basic democratic goods and rights and by regularly having time “stolen” via shorter life expectancy, mass incarceration, slavery, segregation, and other forms of oppression. This “stolen” time is also evident in everyday life, including the countless hours spent addressing racial injustice or navigating bureaucratic processes to access essential social safety nets. Similarly, Indigenous perspectives on time are said to be shaped by the imposition of the colonizer's and settler's sense of time and by the relegation of Indigenous experiences to the annals of history. Sociologists have also emphasized the racialized nature of legal time, while transitional justice scholarship underscores temporal considerations for societies transitioning from an oppressive past. Despite this wealth of literature, these theories about the relationship between race, time, and injustice are virtually absent from mainstream U.S. legal scholarship. Part I synthesizes this literature to delineate three dimensions of racial time--experiential, perceptual, and structural are especially relevant to the operation of U.S. law.

Building on these insights, Part II highlights the persistent use of time-based arguments to impede the progress of Reconstruction, civil rights, reparations, and other measures aimed at advancing racial equality. For many people, racial justice measures always seem to arrive too soon or too late, cause change too fast, or last too long. By drawing on archival and other sources, Part II demonstrates how Black activists such as W.E.B. Du Bois, James Baldwin, Fannie Lou Hamer, and Dr. Martin Luther King, Jr. actively challenged these dominant arguments by asserting subordinated experiences and conceptions of time. King believed that justice measures are never “well timed” under dominant understandings of time, a revealing insight that helps to explain the racial equality jurisprudence of the Supreme Court.

Part III argues that Supreme Court opinions have enacted and universalized dominant perspectives on time. In school integration cases, the Court has rendered integration programs “out of time,” deeming them no longer necessary on the basis that present-day segregation is discontinuous from the Jim Crow segregation of the past. This jurisprudence treats the transition to an integrated school system as a one-time process that has already been completed. In affirmative action cases, the Court initially invalidated racial quotas for starting “too late” in U.S. history, suggesting that past discrimination alone is insufficient to justify robust racial remedies in the present. Recently, the Court has invalidated even more modest measures aimed at racial inclusion for lasting “too long.” Additionally, whereas the Voting Rights Act sought to shift time-based advantages from vote suppressors to minority voters, recent voting rights cases have returned those advantages to vote suppressors. This recent voting rights jurisprudence has taken time constraints that seem “ordinary” enough for privileged citizens to overcome and imposed them upon everyone. Part III examines legal briefs to highlight how racial justice advocates consistently challenge the law's embodiment of dominant time. Understanding these alternative temporalities opens up space for critiquing and reimagining the law.

Because the legal enactment of dominant time perpetuates structural inequalities, true transformative progress can be achieved only when subordinated temporalities are acknowledged, considered, and, where appropriate, integrated into the legal framework. The Conclusion examines the proposed Native American Voting Rights Act as an illustrative example and recommends a variety of measures aimed at advancing temporal justice. These include measures enhancing the law's responsiveness to subordinated experiences of time and limiting its deleterious control over subordinated people's time.

The Article adopts historical, contextual, and multidimensional analyses to examine how inequality shapes people's lived experiences and perceptions of time, and how the law incorporates and ignores specific temporal interests. For example, research suggests that the intersection of Blackness and disability can compound certain temporal disadvantages, while the intersection of Blackness and class privilege does not necessarily alleviate such disadvantages. This underscores the absence of a singular racialized experience of time and highlights a dynamic interplay between inequality, time, and the legal system.

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In a stratified society like the United States, perceptions of time can differ based on distinctive group experience. While the legal enactment of time is ostensibly neutral, it often enforces dominant perceptions and interests. It is an invidious form of racial indirection.

Black Americans, in particular, have endured a cruel form of racial time characterized by violence, marginalization, and deprivation. In response, Black activists have actively resisted and challenged prevailing notions of time by presenting their own understandings. These activists highlight enduring injustices across generations, stress productive uses of the present, and articulate collective visions for a more democratic future. Other subordinated groups in the United States, including Native Americans, also face similar subjugation. Recognizing the temporalities of marginalized groups is crucial to addressing their historical and ongoing disenfranchisement.

Supreme Court opinions have played a significant role in enacting and universalizing dominant perspectives of time. Court decisions have often deemed racial remedies untimely and outdated, using time as an excuse to avoid implementing necessary racial justice measures and to dismantle existing remedies. These decisions have also upheld a dominant group's experiences and expectations of time under the guise of race-neutral standards. Consequently, these rulings have erased past progress, enabled time to destructively block justice and accountability, and exhausted the lived time of subordinated people. This adoption of a dominant perspective on time serves to safeguard white political and economic power, effectively suppressing efforts to redistribute intergenerational power and perpetuating inequality by dismissing the persistent existence of racism and the intricate interplay between the past and present.

To truly uphold equal protection, the Supreme Court should actively engage with the arguments about time presented by Black, Indigenous, and other subordinated people. The Court should examine how an accumulation of structural advantages and disadvantages can shape experiences and expectations of time in specific contexts, revealing the illusory nature of time's ostensible “neutrality.” Moreover, it should recognize the disproportionate temporal burdens borne by certain marginalized people that impede their ability to enjoy basic democratic rights, such as voting. However, recent rulings like Brnovich and SFFA indicate that the Roberts Court is unlikely consider the temporal experiences of those who face true subordination. As a result, the most promising paths for progress lie outside the purview of Supreme Court jurisprudence.

Democratic decision-makers have the opportunity to advance temporal justice through various interventions. These interventions may involve measures that make the law and society more responsive to subordinated people's experiences of time and those that limit the law's deleterious control over their time. Both infrastructural and policy solutions should be explored. For example, improving public transit accessibility and quality, as well as reducing the need for travel through practices such as remote court hearings, could alleviate the temporal burdens associated with commuting.

Representational inequities in the legal field fuel temporal inequities. Although laws such as the 1965 Voting Rights Act and the 1968 Fair Housing Act were enacted to protect marginalized groups, their enforcement often relies on relatively privileged individuals who may lack a direct understanding of subordinated perceptions and experiences of time. Some judges, for instance, may consider a few years sufficient time to achieve racial equality because they perceive time differently as powerful members of the majority and empathize with other majority members who resent periods of racial progress. Appointing judges and civil officials who demonstrate sensitivity and empathy toward subordinated experiences could be a positive step, although more is needed to address the structural dimensions of racial time.

A more substantive reform entails amending legal rules and procedures to incorporate and consider subordinated experiences of time. For example, the proposed John Lewis Voting Rights Advancement Act includes the Native American Voting Rights Act (NAVRA), which addresses distinct temporal burdens faced by Native American voters. Given that Native tribes often have to travel hours to vote, NAVRA requires states and courts to account for travel time and previous waiting times for voting in elections. Any changes to polling places on tribal land that increase travel time for voters must receive written consent by the tribe. Thus, NAVRA acknowledges Native experiences of time in ways that the Roberts Court refused to do in Brnovich. Context-sensitive and evidence-based standards of this nature may avoid essentializing racialized experiences of time while increasing decision-makers' awareness of temporal inequalities and reducing the enforcement of harmful “neutral” time standards.

Community engagement also provides an avenue for the law to address the effects of racial time. NAVRA itself emerged from field hearings in Indian Country and multistate surveys of voter discrimination, which revealed that time, place, and manner restrictions constituted obstacles to voting. Additionally, NAVRA establishes a Native American voting task force to address the unique voting challenges faced by Native Americans. Information grounded in the experiences of subordinated groups can challenge dominant assumptions about time and drive changes within and beyond the legal realm.

Avoiding time-based sunset provisions for equality measures offers another means of curbing the law's perpetuation of dominant time. Such timelines often reflect a dominant group's poor understanding of the time required to overcome a racist history, while disregarding subordinated groups' collective and intergenerational experiences of time. Unrealistically short timelines hinder necessary changes by encouraging narrow interpretations of wrongs and remedies and promoting reductive rather than transformative goals. They reinforce the belief that the brief implementation of isolated measures has resolved centuries of racial subordination, when in reality, achieving transitional justice is a complex, intergenerational process. The expiration of a timeline leads to premature and erroneous declarations that the democratic transition in the United States is complete. Following the guidance of U.S. civil rights leaders and international human rights laws, legal benchmarks for achieving racial equality should be oriented towards transformative goals instead of being restricted by arbitrary timeframes.

Structural reforms can also disempower institutions that deprive subordinated people of time and empower alternatives. For example, if Congress wishes to respect the time of minority voters without harmful interference from federal courts, its voting legislation could include provisions that strip the authority of federal courts to review measures protecting voting rights. Additionally, since racialized policing and mass incarceration disproportionately burden the lifetimes of Black Americans, transferring responsibilities associated with policing and jails to social service providers or community organizations that possess cultural and professional competencies, while lacking white supremacist and carceral logics, could help alleviate temporal deprivations and enable constructive uses of time. Structural reforms should strive to minimize the capacity of dominant institutions to devalue marginalized people's time and maximize the control that marginalized people have over their own time.

In conclusion, King's precept that time should be constructively used to promote democracy instead of destructively enabling stagnation holds particular significance in this pivotal moment for U.S. democracy. Congress and the Biden Administration must use time constructively by implementing structural reforms. Any antagonism or complacency on racial justice issues from these entities would itself constitute a destructive misuse of time.

Assistant Professor, Brooklyn Law School; Research Scholar, UC Berkeley Miller Institute of Global Challenges and the Law; Faculty Affiliate, UCLA School of Law Promise Institute for Human Rights; J.S.D., Yale Law School.