AuthorJoshi, Yuvraj


The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely acknowledged and sometimes even denied.

This Article uncovers two main ways that the Supreme Court has sought "racial transition." While Civil Rights era decisions focused on "reckoning" with the legacies of racism, more recent decisions have prioritized "distancing " the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. By rereading opinions concerning school desegregation, voting rights, affirmative action, and disparate impact in terms of reckoning and distancing, this Article provides key insights into racial equality law's history as well as a glimpse into its likely future under the Roberts Court.

Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis highlights how the Supreme Court's inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited America's transition from white supremacy. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase.

As protestors demand a reckoning with America's legacies of racism, the Roberts Court appears poised to leave the past behind. A distancing jurisprudence limits not just what the Court sees as constitutionally required, but what it sees as constitutionally permissible in the pursuit of transition. This Article considers how advocates can seek to reorient race jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.

INTRODUCTION I. TRANSITION AND THE UNITED STATES A. Racisms, Reconstructions, Retrenchments B. Toward a Transitional Analysis of American Jurisprudence 1. Benefits of a Transitional Analysis 2. Objections to a Transitional Analysis II. TRANSITION AND RACE JURISPRUDENCE A. Distancing and Reckoning Frameworks B. School Desegregation C. Voting Rights D. Affirmative Action E. Disparate Impact F. The Roberts Court and Ramos v. Louisiana III. TRANSITION AND THE SUPREME COURT A. Transitional Justice Values 1. Accountability 2. Redress 3. Non-Repetition 4. Reconciliation B. Competing Transitional Visions 1. Interpretive Disagreements 2. Unmastered Pasts CONCLUSION: PATHS FORWARD "[W]e are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools."

--Justice Ruth Bader Ginsburg (2003) (1)

"Nearly 50 years later, things have changed dramatically."

--Chief Justice John G. Roberts, Jr. (2013) (2)


The United States is a nation in transition, struggling to surmount its racist past. (3) After two and a half centuries of indenture and slavery (1619-1865), Reconstruction (1865-1877) made promises of equality and enfranchisement that were never realized. (4) A century of Jim Crow ensued (1877-1960s), with widespread racial violence and racist laws so oppressive that they became a model for Hitler's Germany. (5) With the Civil Rights Movement and the Second Reconstruction (1950s--1968), the nation again attempted to address abuses against Black people and other racial minorities. (6) Yet, despite the important gains of this era, civil rights for minority groups were met with massive resistance and a long period of racial retrenchment that continues to this day. (7)

The Supreme Court has played a leading part in this transition story. For much of its history, the Court's decisions openly enshrined white supremacy. (8) However, particularly since its 1954 decision in Brown v. Board of Education, (9) transitional perspectives have shaped the Court's race jurisprudence. (10) Justices across the political spectrum ground arguments in the need to overcome racial wrongdoings and divisions. Recent decisions limiting civil rights, like Parents Involved v. Seattle' (11) and Shelby County v. Holder,' (12) are as steeped in transitional reasoning as the landmark decision in Brown, although their underlying theories of transition are quite different.

Legal scholarship has yet to focus on these different theories of transition, despite their significance for which wrongs are redressed and which remedies are deemed legitimate. This Article uncovers two main ways that the Supreme Court has sought racial transition--reckoning with and distancing from the past. Because these two frameworks are more dynamic than the prevailing theories of equal protection, they allow us to see race jurisprudence in a new light. (13)

In the Civil Rights era, the Supreme Court enforced and extended measures designed to address the legacies of historical racism. But with the civil rights retrenchment and conservative appointments starting in the late 1960s, the Court's decisions moved from reckoning toward distancing. In trying to disassociate the United States of today from its antebellum and Jim Crow histories, the Court denounced blatant forms of racism from the past while discounting the racism present today and denying continuities between past and present racism. The Court also became preoccupied with identifying a discrete end point of the transition process--the point at which America's links to its racist past would be deemed severed once and for all and "extraordinary" policies such as voter protections and affirmative action would be cast aside.

With this shift from reckoning to distancing, civil rights measures that were once deemed necessary and urgent were declared inappropriate and outdated--and even antithetical to the project of ensuring a racially just society. Today, this distancing approach dominates the jurisprudence of an increasingly conservative Court, largely relegating reckoning approaches to liberal dissents. (14)

These trends are likely to accelerate with a durable conservative majority on the Supreme Court. (15) The Roberts Court can be expected to use distancing arguments to depart from racial equality precedent, to discontinue or weaken current measures that redress racial harms, and to inhibit the introduction of similar measures in the future. This distancing jurisprudence would constrain efforts to address racial inequality through other channels such as school integration plans, voting rights legislation, affirmative action programs, and disparate impact assessments. How the Court interprets transition thus has consequences not only for the development of legal doctrine, but also for how law affects social spheres from education to housing. This Article offers guidance on how racial justice advocates can seek to reorient a predominantly distancing jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.

Furthermore, this Article's transitional justice lens places the Supreme Court's efforts within a global conversation. Transitional justice is a field of practice and research concerned with how societies move from oppression and violence toward a more just and peaceful order. (16) Transitional justice focuses on promoting accountability for wrongdoings, (17) opening political and social space to marginalized people, (18) providing redress for and ensuring non-repetition of injustices, (19) and facilitating societal reconciliation by alleviating negative emotions (20) and transforming individual and communal identities, (21) to name a few key concerns. Societies pursue these concerns through such measures as truth commissions and reparations programs, with courts often playing a central role.

While the United States has sought a racial transition from slavery and Jim Crow, it has largely eschewed transitional justice in response to racist human rights violations. The United States has advocated truth commissions and other transitional justice measures abroad, yet neglected the need for such measures at home. (22) Recently, the tragic killings of Breonna Taylor, Tony McDade, George Floyd, and countless other Black people have led to increased calls for transitional justice in this country, which is a marked change from the norm of the United States focusing on transitional justice in other countries. (23)

As the United States continues to struggle with the perpetuation of systemic racism in different forms, a transitional justice assessment of Supreme Court decision-making is urgently needed. This assessment reveals the Court's inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) that have been considered crucial in other societies. (24) Inadequate attention to these values may be an important reason why the United States has struggled to surmount its racist past. Transitional justice theory provides a basis not only for evaluating American transitional approaches, but also for improving how courts and other segments of society pursue these values.

This Article's transitional perspective thus provides a richer understanding of current racial equality doctrine, insights into its history and likely future, independent criteria for critiquing it, and new ideas for reorienting it. At the same time, court cases serve as valuable case studies for thinking about the racial transition project. Analyzing legal opinions allows us to recognize the Supreme Court as one node in a broader network of agents working toward and against particular kinds of transition. Once we understand how the Court pursues racial transition, we will be in a better position to think about the...

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