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BrandonHoltSecondEssay 5 - 07 Jun 2022 - Main.BrandonHolt
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| | | The Problem
Exchanges about the place of racial consciousness in the judiciary was intensified in Brown Jackson’s subsequent confirmation hearing for a seat on the United States Supreme Court, where she was expected to become the first Black woman justice. Senators Ted Cruz and Marsha Blackburn, in particular, questioned whether Brown Jackson believed “babies [were] racist” and whether it was Brown Jackson’s “personal hidden agenda to incorporate critical race theory into our legal system.” Similar to her Court of Appeals confirmation, Brown Jackson shut down inquiries about her view on “critical race theory” as “not com[ing] up in [her] work as a judge.” | |
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< | While Brown Jackson's response was probably fair to survive the hearing, it may also have been incomplete. Critical race theory is a legal discipline that considers how to shape the law for the benefit of historically marginalized racial communities. There can undoubtedly be an application of the theory in the work of a justice. For example, the opinion for an anti-discrimination case before the Court may scrutinize precedents like Davis and Feeny, which restrict disparate impact standards to prove cognizable discrimination. Specifically, the opinion may use the interdisciplinary framework of critical race theory to consider the impact of such holdings and the degree to which they limit actionable claims of discrimination by Black claimants. Based on this analysis, the Court could further (re)define unlawful discrimination by considering what populations need to be the target of a discriminatory act for that discrimination to be cognizably unlawful (rather than blanketing any racial distinctions as worthy of strict scrutiny). | >
> | While Brown Jackson's response was probably fair to survive the hearing, it may also have been incomplete. Critical race theory is a legal discipline that considers how to shape the law for the benefit of historically marginalized racial communities. There can undoubtedly be an application of the theory in the work of a justice. For example, the opinion for an anti-discrimination case before the Court may scrutinize precedents like Davis and Feeny, which restrict disparate impact standards to prove cognizable discrimination. Specifically, the opinion may use the interdisciplinary framework of critical race theory to consider the impact of such holdings and the degree to which they limit actionable claims of discrimination by Black claimants. Based on this analysis, the Court could further (re)define unlawful discrimination and expand the available standards to prove it. | | | | |
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< | But Cruz and Blackburn did not evoke critical race theory to mean the intersectional legal discipline that evaluates the subjugation of Black people and how the law can be reimagined to eradicate racial inequality. Instead, the senators used the language of “critical race theory” as a dog whistle to conservative bases to imply imaginary liberal movements that seek to "marginalize" white people. Regardless of whether Brown Jackson actually held a view or opinion that aligns with the suggestion offered here on how critical race theory may be applied as a justice, the senators weaponized the tradition of obfuscation in confirmations to attempt to elicit a denial of systemic racism from a Black jurist. | >
> | But Cruz and Blackburn did not evoke critical race theory to mean the intersectional legal discipline that evaluates the subjugation of Black people and how the law can be reimagined to eradicate racial inequality. Instead, the senators used the language of “critical race theory” as a dog whistle to conservative bases to imply imaginary liberal movements that seek to "marginalize" white people. Regardless of whether Brown Jackson actually held a view or agenda that aligns with the suggestion offered here on how critical race theory may be applied as a justice, the senators weaponized the tradition of obfuscation in confirmations to attempt to elicit a denial of systemic racism from a Black jurist. | | | The Impact
Aziz Rana pointedly wrote about the history that allows denials of the US's perpetuation of racial violence to remain in mainstream dialogue in “Colonialism and Constitutional Memory.” She argued that America denies its settler roots and subjugation of Native and African people because the American Constitution, as a symbol, “sustains a particular narrative of the country as free and equal from the founding.” Rather than reckoning with this history, America’s insistence in “read[ing] a liberal and egalitarian identity into the country’s founding” obfuscates the necessity to engage in “structural transformation.” Rana further contemplated the impact of this dishonesty on Black radical and civil rights movements in the mid-twentieth century. She argued that these movements, by necessity, appealed to the narrative of American liberalization and possibility. The majority’s dishonesty “required [B]lacks to deny that their sustained experience of enslavement and subordination embodied an essential, perhaps irredeemable, truth about the nation’s character.” |
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