Pre-2020 Critiques of Critical Race Theory

• Pages: 61-87
• Author: Khiara M. Bridges

61

Chapter 3

PRE-2020 CRITIQUES OF CRITICAL

RACE THEORY

I. Introduction

Critical Race Theory has received its fair share of criticism over

the years. This is to be expected: As discussed in Chapter 1, the

architects of CRT quite intentionally situated the theory in

opposition to two frameworks that, at the time of CRT’s emergence,

had many adherents both inside and outside the legal academy: the

Critical Legal Studies movement and mainstream liberal approaches

to civil rights. Because CRT purposefully challenged influential ways

of thinking about the law and society, it ought to come as no surprise

that, while devotees of these challenged frameworks were

sympathetic to CRT’s claim that the country had not achieved

anything that approximated racial justice, they criticized CRT in the

course of defending their preferred ways of thinking. Thus, CRT

sustained critique not only from those with conservative politics (who

were more likely to dispute that the United States had a “race

problem” that deserved any degree of sustained intellectual

attention), but also politically left-leaning, would-be allies.

That we might expect CRT to be on the receiving end of a

negative appraisal or two does not explain the bitterness that

characterized some attacks on CRT, however. A case in point is the

vitriolic review of CRT that then-Seventh Circuit judge, Richard

Posner, wrote in the late 1990s. He described critical race theorists

as “lunatics” who “have swallowed postmodernism hook, line, and

sinker.”

1

He continued by asserting that critical race theorists are

[l]aw professors with little to say about the law itself. . . . By

exaggerating the plight of the groups for which they are the

self-appointed spokesmen, the critical race theorists come

across as whiners and wolf-criers. By forswearing analysis

in favor of storytelling, they come across as labile and

intellectually limited. By embracing the politics of identity,

they come across as divisive. . . . Their grasp of social reality

is weak; their diagnoses are inaccurate; their suggested

cures (rigid quotas, 1960s-style demonstrations,

transformations of the American spirit, socialism, poverty

law practice) are tried and true failures. Their lodgment in

1

Richard Posner, The Skin Trade, THE NEW REPUBLIC, Oct. 13, 1997, at 40

(book review).

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PRE-2020 CRITIQUES OF CRITICAL

RACE THEORY

Ch. 3

the law schools is a disgrace to legal education, which lacks

the moral courage and the intellectual self-confidence to

pronounce a minority movement’s scholarship bunk. . . .

[They] have gotten a free ride for too long because they have

wrapped themselves in the mantle of race.

2

Of course, Posner may have had an honest aversion to the

methodological moves and the substantive claims that critical race

theorists writing in the 1980s and 1990s made in their scholarship.

However, the not-so-thinly-veiled contempt, wholesale

dismissiveness, and alarming hostility with which Posner writes

suggests that something more fundamental is in operation: Posner

might simply have had an issue with CRT’s refusal to be satisfied

with the racial progress that had been made. That is, Posner’s

willingness to reject CRT as the stuff of “lunatics,” and his hope that

everyone else would do the same, may be a product of his anger at its

radicalism. This is to say that while we should assume that most of

the critiques of CRT that this chapter explores came from a place of

respectful disagreement, we should be attuned to the possibility that

some critiques were made because the critic detested people of color

who had the audacity to not be content with formal racial equality

and who demanded more from the country. Indeed, some of these

critiques “reflect the cold fact that many, in the legal academy and

beyond, just don’t want to hear what Critical Race scholars have to

say.”

3

Importantly, a new wave of critiques of Critical Race Theory

washed over the U.S. in the fall of 2020—long after CRT had settled

into the legal academy as one of many legitimate theoretical

orientations that one could have toward the law. Yet, this new wave

of critiques of CRT differs from those that had come before in a very

crucial respect: They are not about actual CRT. Instead, they are

about a caricature of the theory that is presented in this book.

For this reason, it is tempting to ignore these post-2020

critiques. If this primer endeavors to describe CRT—and if the post-

2020 critiques are not really about CRT—then, arguably, an

engagement with them is an unnecessary detour from an

engagement with CRT. Nevertheless, it is advisable to take seriously

these later critiques of so-called CRT. First, many people’s

introduction to the term “CRT” was through these misdescriptions of

the theory. Accordingly, discussing the post-2020 critiques presents

an opportunity to examine the distance between genuine CRT and

detractors’ rendering of CRT. Second, actual CRT endeavors to reveal

2

Id.

3

Robin D. Barnes, Race Consciousness: The Thematic Content of Racial

Distinctiveness in Critical Race Scholarship, 103 HARV. L. REV. 1864, 1871 (1990).