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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Roberts Court as Champion of Racial Justice
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Tuesday, January 24, 2023
The Roberts Court as Champion of Racial Justice
Guest Blogger
For the Balkinization 20th Anniversary Symposium Khiara M. Bridges The
November issue of the Harvard Law Review is always dedicated to the Supreme
Court’s most recently concluded Term. I had the honor of writing the Foreword
to the November 2022 issue of the Review. The October 2021 Term included cases
that touched on some of the most politically salient issues in the U.S. today,
including climate change, the place of religion in public life, guns, and
abortion rights. One part of my Foreword is an investigation into the role of
race in two of the Court’s biggest cases last Term—New York State Rifle and
Pistol Association v. Bruen, in which the Court interpreted the Second
Amendment to protect a very broad right to bear and carry arms, and Dobbs
v. Jackson Women’s Health Organization, in which the Court overturned Roe
v. Wade and returned the question of abortion’s legality to the states. The Foreword analyzes the way that
race operated in those cases. It argues that although neither case is about race—and
although the Court did not have to talk about race to adjudicate the
constitutional question before it—the Court deployed race in the service of its
preferred policy outcome. To be precise, the Court framed its decisions in both
cases as ones that would be work to undo racial hierarchy and racial
subordination. In essence, the Court positioned itself as a champion of racial
justice. Justice Thomas’s majority opinion
in Bruen continues a narrative about the relationship between gun rights
and black liberation that began in District of Columbia v. Heller and
continued in McDonald v. City of Chicago. In this narrative, gun rights
and gun possession are essential to black freedom. The Bruen majority
opinion describes recently emancipated black people who “had ‘procured great
numbers of old army muskets and revolvers, particularly in Texas,’ and
‘employed them to protect themselves’ with ‘vigor and audacity.’” It recounted
the stories of black people who considered it essential to possess firearms if
they were to participate in politics: these folks “nearly all sle[pt] upon
their arms at night, and carr[ied] concealed weapons during the day.” It
related that at the end of the Civil War, there had been an “outpouring of
discussion of the [right to keep and bear arms] in Congress and in public
discourse, as people debated whether and how to secure constitutional rights
for newly free slaves.” As I argue in the Foreword, “[t]he opinion can be read
to argue that the reason for this ‘outpouring of discussion’ is that the public
back then understood, as the majority wisely understood today, that black
people need guns to be truly free and equal in America.” In this way, Bruen deploys
race in a way that locates the Court as one that is invested in black people’s
wellbeing. Positioned as such, those who would try to prevent black people from
possessing firearms—like New York State and its restrictive licensing regime,
as well as other liberal proponents of gun control measures—figure as the
parties who are responsible for black people’s subordination. The Democratic
Party becomes the biggest threat that black people face—its policy goals a
program of racial oppression. Simultaneously, the Republican Party, and the
Court that does its bidding, become the antiracists. The Dobbs majority opinion
contains similar rhetorical moves, with the Court deploying race, albeit more subtly,
to add legitimacy to its preferred outcome. The most telling indication that
the Court aims to frame its decision to overturn Roe as one that is in
the service of racial justice is the majority opinion’s approving citation of
Justice Thomas’s concurring opinion in Box v. Planned Parenthood.
Thomas’s opinion in Box, which proposes that the higher rates of
abortion among black people today provide demonstrable proof that abortion is a
technique of black genocide, ignores the myriad reasons behind black people’s more
frequent turn to abortion care—reasons that sound in poverty, lack of access to
contraception and reproductive healthcare, and interpersonal violence. Thomas’s
opinion completely ignores the structural vulnerability that has left black
people with significantly higher rates of abortion than their nonblack
counterparts. Instead, in Justice Thomas’s rendering, those rates evidence a
genocidal plot to decimate the black race. It is as simple as that. If abortion
rights and access have been used as tools to annihilate black people, then the
criminalization of abortion, which the reversal of Roe would permit, is in
the service of black health and wellbeing. Justice Alito’s majority opinion in
Dobbs continues Justice Thomas’s figuration of the relationship between race
and abortion. In a footnote, the opinion observes that several amicus briefs have
argued that “some such supporters [of abortion rights] have been motivated by a
desire to suppress the size of the African-American population.” The majority
opinion responds to this claim by stating, “And it is beyond dispute that Roe
has had that demographic effect. A highly disproportionate percentage of
aborted fetuses are Black.” As I write in the Foreword, “In refusing to discuss
the myriad reasons for black people’s higher abortion rates — even though that
information was available to the Court in other amicus briefs — the majority
opinion implicitly endorsed the ‘abortion is black genocide’ argument. It
implied that the argument is worth mentioning as valid. It implied that the
argument is not worth dismissing out of hand as propaganda.” Further, included in the majority opinion’s
partial itemization of legitimate interests that the reversal of Roe allows
states to pursue when passing abortion restrictions and regulations is the
governmental interest in “prevent[ing] discrimination on the basis of race.” Here,
the majority proposes that it is legitimate for the state to believe that black
people’s higher abortion rates are a function of eugenicists and agents of
genocide duping black people into abortion care. As I write in the Foreword,
“Dobbs establishes that far from being a fantasy of conservative ideologues or
a narrative that political actors tell to try to secure black people’s
opposition to abortion, it is legitimate to think that black people have higher
rates of abortion in part because genocidal actors are out to get them.” In
this way, Dobbs proposes that the reversal of Roe is in black
people’s best interest. The Roberts Court—and the Republican Party whose
platform the Court works to install as the law of the land—figure as the true
champions of racial justice. What does this allow us to predict
about the decisions that the Court will issue in future Terms? It permits us to
foresee that the Court will not be satisfied with staying silent on race when
it is possible to do so. (Again, the Court could have reached its holdings in Bruen
and Dobbs without saying a word about race and racism.)
Instead, we can predict that the Court will frame its decisions—whether they
concern First Amendment rights or the administrative state—as in furtherance of
racial equality and racial justice. But, this may be unsurprising. The Court
has all but abandoned the pretense that it is an apolitical body—guided by
logic and reason, bound by precedent, above the fray of politics. We might have
expected that it would come to be concerned with the political acceptability of
its decisions. Khiara M. Bridges is a professor of law at UC Berkeley
School of Law. Her email address is khiara.m.bridges@berkeley.edu.
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Books by Balkinization Bloggers ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |