This Essay, while addressing both post-racialism and countermajoritarian criticisms of judicial action protecting racial minorities, does not attempt to resolve those debates. Rather, my primary goal is to illuminate the dangers of what I believe to be a coming convergence between those two ideas in constitutional doctrine and discourse. If post-racialism is assumed to be descriptively accurate, then racial minorities should be able to achieve their goals through the political process, rather than through the courts. And if the countermajoritarian critique has force in this context, then it is preferable that they do so.
This Essay argues that the Court’s suspicion of the exercise of minority political power will only increase as its post-racial jurisprudence accelerates. For racial minorities, the countermajoritarian difficulty is likely to become much more difficult.
The fact that litigation has become an increasingly ineffective means for advancing substantive equality in any systematic or structural way could be defensible if, in pushing racial minorities out of the courthouse door, one believed they could (and should) instead turn to the political process. Yet the Supreme Court’s colorblindness doctrine has made it exceedingly difficult for racial minorities to actually achieve their goals through the political process. As will be discussed in the following Part of this Essay, the Supreme Court has repeatedly and aggressively struck down racial minorities’ successful use of the political process to advance their goals. Thus, having explicitly counseled and implicitly required advocates for racial justice to work through the political process and having suggested that no real barriers remain to them doing so, the Court has simultaneously rendered that process unavailing or, at the very least, severely constrained.
The post-racialist position on judicial review depends heavily upon false assumptions regarding minority political power. This Essay interrogates those assumptions and argues that they are based largely on sporadic electoral success (of which the election of President Obama is but the most obvious example), rather than systemic minority political empowerment. Such successes are then used as evidence of the descriptive accuracy of post-racialism. The symbolic legitimacy of such successes is further used as a reason for suspicion of the effective exercise of minority political power, i.e., to suggest that racial minorities have reached a place of such political empowerment that democratic action addressing racial inequality should be as constitutionally suspect as laws subordinating racial minorities. I call this model of judicial review “whitened scrutiny.”
Racial minorities have enjoyed increasing electoral success in recent years, while continuing to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Some observers, including some members of the Supreme Court, have pointed to evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of substantial continued disparities for the vast majority of people of color.
What then is a post-racialist to do about racial profiling? To understand what a race-silent approach to racial profiling might look like, we might turn to the jurisprudence of former U.S. Supreme Court Justice Sandra Day O'Connor. O'Connor is an appropriate object of this inquiry because she created much of the Court's colorblind Equal Protection doctrine and called for a form of post-racialism before that term was widely used. She is known for her colorblindness due to her opinions in Richmond v. J.A. Croson Co. and Shaw v. Reno, which invalidated race-conscious remedies on the theory that the best way to reach a racially egalitarian society is to ignore race. Even in the case where she surprisingly allowed race-based affirmative action in higher education, she foreshadowed post-racialism by declaring that race-consciousness would surely be unnecessary in twenty-five years.
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This Essay has argued that the Supreme Court’s post-racialist jurisprudence treats the effective exercise of minority political power as inherently suspicious. The Court has distorted the traditional justifications for countermajoritarian judicial action in service of a narrative of pervasive white victimization. Its decisions reflect a worldview in which the primary problem of racial injustice today is discrimination against whites by virtue of insidious minority political power. In this final Part, I suggest ways in which the Court’s colorblindess doctrine should be modified to better reflect the realities of minority political power and to allow the political process to function properly.