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Excerpted From: Yuvraj Joshi, Racial Transition, 98 Washington University Law Review 1181 (2021) (474 Footnotes) (Full Document)


yuvraj joshiThe United States is a nation in transition, struggling to surmount its racist past. After two and a half centuries of indenture and slavery (1619-- 1865), Reconstruction (1865-1877) made promises of equality and enfranchisement that were never realized. A century of Jim Crow ensued (1877-1960s), with widespread racial violence and racist laws so oppressive that they became a model for Hitler's Germany. With the Civil Rights Movement and the Second Reconstruction (1950s--1968), the nation again attempted to address abuses against Black people and other racial minorities. Yet, despite the important gains of this era, civil rights for minority groups were met with massive resistance and a long period of racial retrenchment that continues to this day.

The Supreme Court has played a leading part in this transition story. For much of its history, the Court's decisions openly enshrined white supremacy. However, particularly since its 1954 decision in Brown v. Board of Education, transitional perspectives have shaped the Court's race jurisprudence. Justices across the political spectrum ground arguments in the need to overcome racial wrongdoings and divisions. Recent decisions limiting civil rights, like Parents Involved v. Seattle and Shelby County v. Holder, are as steeped in transitional reasoning as the landmark decision in Brown, although their underlying theories of transition are quite different.

Legal scholarship has yet to focus on these different theories of transition, despite their significance for which wrongs are redressed and which remedies are deemed legitimate. This Article uncovers two main ways that the Supreme Court has sought racial transition--reckoning with and distancing from the past. Because these two frameworks are more dynamic than the prevailing theories of equal protection, they allow us to see race jurisprudence in a new light.

In the Civil Rights era, the Supreme Court enforced and extended measures designed to address the legacies of historical racism. But with the civil rights retrenchment and conservative appointments starting in the late 1960s, the Court's decisions moved from reckoning toward distancing. In trying to disassociate the United States of today from its antebellum and Jim Crow histories, the Court denounced blatant forms of racism from the past while discounting the racism present today and denying continuities between past and present racism. The Court also became preoccupied with identifying a discrete end point of the transition process--the point at which America's links to its racist past would be deemed severed once and for all and “extraordinary” policies such as voter protections and affirmative action would be cast aside.

With this shift from reckoning to distancing, civil rights measures that were once deemed necessary and urgent were declared inappropriate and outdated--and even antithetical to the project of ensuring a racially just society. Today, this distancing approach dominates the jurisprudence of an increasingly conservative Court, largely relegating reckoning approaches to liberal dissents.

These trends are likely to accelerate with a durable conservative majority on the Supreme Court. The Roberts Court can be expected to use distancing arguments to depart from racial equality precedent, to discontinue or weaken current measures that redress racial harms, and to inhibit the introduction of similar measures in the future. This distancing jurisprudence would constrain efforts to address racial inequality through other channels such as school integration plans, voting rights legislation, affirmative action programs, and disparate impact assessments. How the Court interprets transition thus has consequences not only for the development of legal doctrine, but also for how law affects social spheres from education to housing. This Article offers guidance on how racial justice advocates can seek to reorient a predominantly distancing jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.

Furthermore, this Article's transitional justice lens places the Supreme Court's efforts within a global conversation. Transitional justice is a field of practice and research concerned with how societies move from oppression and violence toward a more just and peaceful order. Transitional justice focuses on promoting accountability for wrongdoings, opening political and social space to marginalized people, providing redress for and ensuring non-repetition of injustices, and facilitating societal reconciliation by alleviating negative emotions and transforming individual and communal identities, to name a few key concerns. Societies pursue these concerns through such measures as truth commissions and reparations programs, with courts often playing a central role.

While the United States has sought a racial transition from slavery and Jim Crow, it has largely eschewed transitional justice in response to racist human rights violations. The United States has advocated truth commissions and other transitional justice measures abroad, yet neglected the need for such measures at home. Recently, the tragic killings of Breonna Taylor, Tony McDade, George Floyd, and countless other Black people have led to increased calls for transitional justice in this country, which is a marked change from the norm of the United States focusing on transitional justice in other countries.

As the United States continues to straggle with the perpetuation of systemic racism in different forms, a transitional justice assessment of Supreme Court decision-making is urgently needed. This assessment reveals the Court's inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) that have been considered crucial in other societies. Inadequate attention to these values may be an important reason why the United States has straggled to surmount its racist past. Transitional justice theory provides a basis not only for evaluating American transitional approaches, but also for improving how courts and other segments of society pursue these values.

This Article's transitional perspective thus provides a richer understanding of current racial equality doctrine, insights into its history and likely future, independent criteria for critiquing it, and new ideas for reorienting it. At the same time, court cases serve as valuable case studies for thinking about the racial transition project. Analyzing legal opinions allows us to recognize the Supreme Court as one node in a broader network of agents working toward and against particular kinds of transition. Once we understand how the Court pursues racial transition, we will be in a better position to think about the various spheres and actors involved in this project, the different paths available to transition, and the values at stake.

The Article proceeds as follows. Part I presents a transitional account of racial justice and injustice in the United States, rebutting the argument that the United States is non-transitional. It briefly describes the transition from slavery to the present day and the value of viewing American society and jurisprudence from a transitional perspective.

Part II develops the frameworks of reckoning and distancing to analyze Supreme Court opinions in four areas: school desegregation, voting rights, affirmative action, and disparate impact. The Court in these cases not only makes judgments about racial equality, but offers narratives about the racial past, present, and future and theories of racial change. Rereading landmark cases through the prism of reckoning and distancing reveals how judges have understood racial transition and how judicial accounts of transition have evolved over time. Applying this analysis to the Court's recent decision in Ramos v. Louisiana highlights how conservative Justices differ in their transitional approaches not only from their liberal colleagues, but also from one another.

Part III uses transitional justice theory to evaluate the Supreme Court's decision-making around race. This analysis indicates that the Court has underestimated key transitional justice values and that disagreements within race jurisprudence reflect struggles over the ownership of transition and over America's “unmastered past.” It further points to how transitional justice frameworks can be used to evaluate the competing claims emanating from the Court and to decide which claims about transition should have purchase.

While the Supreme Court may not be the most important vehicle for racial transition, it is the focus of this Article because its interpretations have far-reaching implications for transition efforts elsewhere. America's transition from white supremacy has been constrained not just by the political decisions of its leaders, but also by the legal decisions of its judges. As protestors demand a reckoning with America's legacies of racism, the Roberts Court seems poised to leave the past behind by declaring that the time for reckoning is over. This distancing approach would complicate an already challenging legal and political landscape for transition and inevitably impact ongoing efforts to achieve structural change.

This Article therefore concludes by considering the role that scholars, reformers, decision-makers, and publics can play in the continuing pursuit of transition. Deeper engagement with the idea of racial transition can enable these actors to align laws and policies surrounding race with international human rights norms and American civil rights values.

[. . .]

This Article has shown how transitional reasoning has shaped, and may continue to shape, the Supreme Court's race jurisprudence. In an ideal world, this Article's analysis would lead the Court to better reconcile distancing with reckoning, accounting for where racial discrimination and disparities continue to structure everyday life. Such a jurisprudence would acknowledge the persistence of structural racism in the United States and Americans' role in perpetuating and benefiting from it. It would promote collective responsibility and structural approaches for the problem of racism and uphold laws and practices designed to tackle it. As this jurisprudence secures robust protections for racial minorities, it would also reduce their estrangement from the law by better reflecting and respecting their experiences. This more rigorous reckoning could be undertaken in the name of a more genuine distancing.

In reality, however, the Roberts Court seems ready to abandon racial reckoning in favor of an illusory distancing. By casting civil rights measures aside as obsolete and even detrimental, such a jurisprudence would help to maintain America's legacies of racism as well as Americans' misperceptions regarding racial equality, impeding possibilities for transition.

The fact that “transitional justice” has never appeared in a Supreme Court opinion does not detract from the utility of a transitional analysis. Even if the Court does not take up a stance more richly rooted in transitional justice principles, this Article invites academics to more carefully interrogate its transitional reasoning. By invoking the more expansive understandings of human rights and theories of societal change that characterize critical transitional justice approaches, academics can evaluate the factual and normative assumptions of legal arguments and supplant or supplement the transitional pathways advanced by the Court. For example, through comparison with the larger universe of concerns that animate transitional justice approaches and how these concerns have played out in other countries, academics may examine how court decisions have failed to address specific problems and consider alternate responses.

By examining how different judges interpret transition, academics might be better able to identify actions and arguments that might withstand the scrutiny of an evolving Supreme Court. Advocates, in turn, might be better able to justify these interventions by tailoring arguments to specific judges. For instance, Chief Justice Roberts may be better persuaded to uphold certain civil rights measures by legal arguments that recognize both continuity with and discontinuity from the nation's past. Adopting a transitional perspective, arguments tailored to the Chief Justice would demonstrate that civil rights measures are worth preserving even though (and ideally because) the nation has changed since the Civil Rights era. By contrast, Justices Gorsuch and Kavanaugh may be better persuaded to reject contemporary forms of racism by tracing them to a form practiced in an earlier era, thus demonstrating continuity between “[t]hen and now.” By making strategic transitional arguments, advocates can seek to reorient a predominantly distancing jurisprudence toward greater racial reckoning.

Beyond tailoring arguments to specific judges, legal advocates may seek to imbue racial equality law with more expansive and emancipatory understandings of transition, including from the past. For instance, contrary to Chief Justice Roberts' insistence that transitional measures have fixed deadlines, Dr. King noted that “the [Brown] court did not set a definite deadline for the termination of this process” and only expected Americans to work toward “a smooth and peaceful transition.” Reasoning from transition opens new avenues for not only framing racial injustices as international human rights violations, but also making more critical perspectives on racial transition throughout history cognizable by law.

For Court enthusiasts and skeptics alike, it is important to recognize that racial transition is most successfully pursued through a wide array of strategies in diverse fora, including city councils, state legislatures and courts, Congress, and other democratic decision-making bodies. For example, passing laws such as the For the People Act, which restores key protections of the Voting Rights Act, and the Ending Qualified Immunity Act could overcome certain judicially created impediments to transition. Passing the John Lewis Voting Rights Advancement Act based on “current conditions” could help to curtail regressive transitional reasoning by courts. The George Floyd Justice in Policing Act and the Confederate Monument Removal Act could directly address transitional justice concerns, including accountability, memorialization, and repair.

Transitional justice measures, when implemented properly, can get to the roots of historical injustices and work toward creating a more just society. Throughout the United States, truth and reconciliation processes could be initiated to grapple with the legacies of racial oppression. In June 2020, Rep. Barbara Lee called for a U.S. Commission on Truth, Racial Healing, and Transformation, and a number of cities followed with plans for their own truth, justice, and reconciliation commissions. Since the U.N.'s failure to create an international commission of inquiry on U.S. racism that same month, there have been discussions of forming a nationwide “people's commission” on racism. Implementation of such American commissions should build on the lessons learned from foreign ones, which are extensively studied in the transitional justice literature.

Communities could undertake symbolic reparations, including public acts of atonement, establishment of museums, and changing of names, as well as material reparations. Recently, cities including Evanston, Illinois, Asheville, North Carolina, and Providence, Rhode Island, announced plans to initiate “reparations” processes. Collective forms of reparations--such as service packages (including medical, educational, and housing assistance), development and social investment, and “racism response funds”--could be effective and viable steps toward reconciliation. Georgetown University plans to finance health clinics and schools in Louisiana to reach the descendants of the enslaved people from whom Georgetown profited. These commitments, though limited, could pave the way for more comprehensive efforts.

While American transitional justice discourse has aptly focused on reparations, transitional justice can encompass structural changes to address the causes of conflict and avoid its repetition. In the United States, transitional justice can help frame changes in public education, criminal legal systems, and electoral and judicial institutions; for instance, movements to end mass incarceration have been called transitional justice efforts. Inasmuch as the Supreme Court impedes America's transition from white supremacy, Supreme Court reform may itself be understood as a transitional justice measure. Beyond institutional changes, universal reforms aimed at redistribution and cancellation of debts may help to address embedded inequalities and similarly be justified on transitional justice grounds. Isolated transitional justice measures are likely to be inadequate, ineffective, and even counterproductive without accompanying structural changes.

Localized measures may be necessary in many cases, as racist policies, racialized experiences, and race relations all vary by region. As Sherrilyn Ifill puts it: “Historically, racism was felt, lived, and perpetrated locally. Reconciliation, therefore, must also be local.” By delivering the kinds of reckoning and reconciliation that the United States has failed to realize at the national level, local government and community actions can carve out promising paths to “domesticating” transitional justice norms. Given the sheer size of the United States, localized measures may be unavoidable; yet, they may also be insufficient to address racial injustices and may be seen to absolve all levels of government of their obligations. Ultimately, local actions must influence national ones. The Biden Administration should coordinate a program to address the history and legacies of American racism, building on lessons learned at home and abroad.

The persistence of racism is visible in the endemic violence against Black people and in the racialized impact of and response to COVID-19. Racial justice movements such as the Movement for Black Lives are leading structural changes in American society. Their demands are linked as much to the past and future as to the present. Protesters today are not demanding discrete remedies for discrete harms. Instead, they are calling for a comprehensive and coordinated transition process that deals with the history, legacy, and future threat of white supremacy in the United States. As Americans seek to actualize this transition process through or beyond the Supreme Court, they have much to learn from and contribute to global conversations around transitional justice.

Assistant Professor of Law, University of British Columbia Allard School of Law; Fellow, Yale Institution for Social and Policy Studies (2019-2020).

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