Comparative Judging of Civil Rights: A Transnational Critical Race Theory Approach

• Author: Tanya Katerí Hernández
• Position: Professor of Law and Justice Frederick Hall Scholar, Rutgers University Law School-Newark,
• Pages: 875-886

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Professor of Law and Justice Frederick Hall Scholar, Rutgers University Law School-Newark, and Scholar-in-Residence at the Schomburg Center for Research in Black Culture, Fall 2003. Thernandez@kinoy.rutgers.edu. Deborah Alexander and Laura Barrios provided excellent research assistance. Funding for this research project was generously provided by the Dean's Research Fund of Rutgers School of Law-Newark.

Studies consistently demonstrate that the act of judging is influenced by judges' personal perspectives and experiences. For instance, research has demonstrated that empirically U.S. Supreme Court justices' behavior is motivated, in large part, by their individual attitudes or judicial philosophies.¹ In addition, research on the U.S. chief justice's distribution of opinion assignments also suggests that ideology plays a role inasmuch as those justices whose preferences are more closely aligned with the chief justice will be assigned to author opinions.² Furthermore, empirical research indicates that the influence of ideology on judges also extends to federal appellate court judges in race relations cases.³ Transnational comparative research also suggests that the politicized conduct of judges is not exclusive to the United States.⁴ For instance, in a recent comparison of the judicial task of making opinion assignments within the United States, Canada (post-Charter years) and South Africa (apartheid era), the study found that chief justices in all the countries did not assign judges to panels randomly, but rather were influenced by the ideology of the sitting judge and the issues presented in the case.⁵ The study concluded that judging is a political behavior that exhibits similar influence to ideology, despite the vastly different Page 876 structural legal systems for judging that can exist.⁶ Is it then possible that John Valery White's "activist insecurity" theory discussed in this volume is applicable beyond the United States context from which he develops the theory?⁷

John White's activist insecurity theory posits that from the inception of civil rights legislation, judges in the United States have demonstrated an unease with affecting social change, based on the mostly unstated notion with no legal basis that courts should not change the social status quo absent extraordinary reasons for doing so. In the search to adhere to a vision of judicial behavior that is formalistic and is not activist, even when the law itself prescribes such change, judges in the United States have felt constrained by a cultural norm White terms "the activist insecurity." The irony, of course, is that the activist insecurity leads judges to avoid the full implications of enforcing civil rights statutes in a way that demonstrates what White calls a "troubling lack of allegiance' to formalistic applications of the law. The activist insecurity theory highlights the way in which the image the judiciary has of itself as an institution limits what it is actually empowered to do. According to White, this in turn has led to the demise of civil rights in the United States because it is not viewed as "real law." Because White's in- depth excavation of all the civil rights cases that demonstrate the activist insecurity is such a massive undertaking, what is left for another day is the question of why civil rights law codified by statute and well established by precedent does not seem like real law to jurists.

Accordingly, this essay builds upon John White's conceptualization of activist insecurity, by deploying the analytical tools of Critical Race Theory. Specifically, this essay will first use a Critical Race Theory analysis to explain how unconscious racism is broadly involved in the manifestation of activist insecurity. The essay will then illustrate how the Critical Race Theory understanding of activist insecurity as emanating from unconscious racism thereby implicates not only the enforcement of U. S. civil rights laws, but also the civil rights enforcement of countries internationally. By way of example, the essay demonstrates how the activist insecurity concept is relevant in Latin America. The essay then concludes by proposing a Critical Race Praxis-inspired remedy of Critical Race Theory-infused judicial training to address the manifestation of activist insecurity transnationally.

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I A Critical Race Theory Analysis Of The Source Of Activist Insecurity

Critical Race Theory has much to offer in understanding the judicial activist insecurity that permeates not only conservative judges but liberal judges as well. Critical Race Theory is a strain of legal scholarship that challenges the ways in which race and racial power are constructed and represented in legal culture and, more generally, in society as a whole.⁸ Critical Race Theory scholar Girardeau Spann has long noted that because jurists have been socialized by the dominant culture, they have internalized the basic values and assumptions of that culture, including the beliefs and predispositions that can cause the majority to discount minority interests. . . . Moreover, to

the extent that the justice has been socialized to share majoritarian prejudices, he or she may not even be consciously aware of the nature of those prejudices, or the degree to which they influence the exercise of the justices's discretion.⁹

What Critical Race Theory has contributed to our knowledge about race relations is the power of demonized racial categories to taint whatever they are associated with. Thus, while many judges may harbor no purposeful disregard for fully enforcing civil rights, as members of society they are just as susceptible to internalizing the cultural disdain for anything that comes to be identified with the needs of subjugated communities.¹⁰ And as legal scholar Charles Lawrence has long observed, the cultural disdain is often unconscious¹¹ and thus easily pervades perspectives about enterprises most closely associated with the needs of people of color. For instance, scholars who have studied the demise of the War on Poverty and New Society programs of the 1960's note the manner in which its links to Black civil rights led to the decline in public support for the programs.¹² Similarly, when Page 878 real estate markets come to be associated as being predominantly of color, they are viewed as less desirable;¹³ and when particular jobs and sectors of the labor market come to be associated with people of color, they are viewed as less prestigious.¹⁴ Therefore, as Derrick Bell states, in a context in which the law "has always been a powerful expression of ruling interests,"¹⁵ it would be logical that laws not associated with the ruling interests would be viewed as not "real law." Indeed, implicit in the neo-conservative critique of civil rights activists' "misinterpretation" of civil rights laws is the notion that the ability to change the racial status quo is not a role for real law to begin with.¹⁶In short, activist insecurity may stem not only from what John White describes as a self-imposed vision of judicial behavior that is purely formalistic, but also from the societal disdain that accompanies anything that comes to be closely associated with the needs of people of color.

Consequently, activist insecurity may not exclusively be an outgrowth of the U.S. legal culture, but may instead be more generally manifested wherever longstanding racial discrimination and social exclusion has existed. What then does this portend for those societies outside of the United States that are just beginning to seek mechanisms for bolstering the enforcement of more efficacious civil rights laws?

II The Activist Insecurity Abroad: The Latin American Case Study

In response to evolving civil rights movements in Latin America, governmental leaders have recently expressed interest in devising Page 879 legal methods for combating racial discrimination.¹⁷ In fact, the Organization of American States adopted a resolution at its General Assembly held in Santiago, Chile, in June of 2003, which directs the Inter-American Commission for Human Rights to report on the ways in which various Latin American countries that are state members have enacted legal measures to combat discrimination in compliance with the 1965 United Nations International Convention on the Elimination of all Forms of Racial Discrimination. Furthermore, in June 2002 the Inter-American Development Bank held a two-day conference in which they brought community activists from throughout Latin America to meet with U.S. scholars from many disciplines to discuss the issue of racial justice. It is the Bank's concern that the loans they extend to many Latin American countries are not fully effective at improving the lives of those countries' citizens, due in large part from the socio-economic barriers of anti-Black racism and bias against indigenous populations. But what hope do these nascent efforts in Latin America have if activist insecurity is a concept that is endemic to civil rights judicial enforcement favoring subordinated communities?

It is not all precipitous to consider the possible effects of an activist insecurity in the context of Latin American civil rights judicial enforcement, considering the fact that judicial reform has long been an issue of concern in Latin America. In particular, the 1980's began an intensive period of judicial reform funding from the United States as part of its overall foreign policy effort to promote democracy abroad.¹⁸ Funding was provided, in part, to increase judicial personnel training, increase judicial sector budgets and to ameliorate judicial career standards.¹⁹ The judicial reform priorities were set in response to country...