Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 5 of 5
Full-Text Articles in Law and Race
Random Justice, Girardeau A. Spann
Random Justice, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …
Gerrymandering Justiciability, Girardeau A. Spann
Gerrymandering Justiciability, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the …
Good Faith Discrimination, Girardeau A. Spann
Good Faith Discrimination, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The Supreme Court's current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court's racial jurisprudence stem from the Court's willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination.
Color-Coded Standing, Girardeau A. Spann
Color-Coded Standing, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
Remarkably, the Supreme Court has held that whites who wish to challenge the constitutionality of affirmative action plans have standing to do so. In Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville the Supreme Court upheld the standing of non-minority construction contractors to challenge a minority setaside program under the Equal Protection Clause of the United States Constitution. What is remarkable is not that the result reached in the case was wrong, but that the Court was able to reach that result given its most recent standing precedents. In previous Terms, the Supreme Court had taken …
Pure Politics, Girardeau A. Spann
Pure Politics, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
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 minority interests receive at majority expense now dominates the Supreme Court. In reviewing the work of the Court during its 1988 Term, The United States 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 …