Perfectionism and Maximum Consciousness in Anti-discrimination Law: a Tribute to Judge Betty B. Fletcher

JurisdictionUnited States,Federal
CitationVol. 85 No. 1
Publication year2021


Norman W. Spaulding(fn*)

Abstract: What follows is a speech on the significance of Judge Betty Binns Fletcher's opinions in the area of race and anti-discrimination law delivered at the University of Washington School of Law's symposium, A Tribute to the Honorable Betty Binns Fletcher, honoring Judge Fletcher's thirtieth year on the bench. I argue that, in an era when the Supreme Court has increasingly refused to recognize anti-discrimination claims, Judge Fletcher's intensely fact-sensitive method of deciding such cases is as important as the results she has reached. Against the Supreme Court's perfectionist jurisprudence, predicated on the assumption that by excising race from law, one can eliminate discrimination in society, Judge Fletcher has developed a jurisprudence of maximum consciousness, predicated on the assumption that judicial officers are obliged by the Fourteenth Amendment and our history to remain acutely aware of the risk of slippage between seemingly rational, neutral social action and irrational stereotype, cognitive bias, and animus.

I am honored to have the invitation to speak about Judge Betty Fletcher. I should say up front that I am not an empiricist. My method of reflecting on the Judge's decisions on race and the law is the fruit of an impressionistic doctrinal survey, supplemented by something like reverse autobiographical free association. I am not an anti-discrimination expert either, though I have followed some of the doctrine in this area with interest. It is also possible and perhaps more honest to say that antidiscrimination law brought me to law school, though not in any conventional sense. I have not told this story to the Judge before, but I am prompted by reading her cases on race to share it now.

My parents are mixed. My mother is lily white, grew up in a small New England town. My father is black, grew up on the South Side of Chicago. Spauldings, black Spauldings, have always been mixed. Family records go back to North Carolina in the early 1800s and a series of interracial encounters: between a white plantation owner and his slave, the Indian woman the slave married, and the son of the plantation owner who freed the slave by formal court petition in 1825. The slave, Benjamin Spaulding, was bom in Duplin County in 1773. Deed records show him owning property as early as 1817, and the 1820 census lists him as a "free man of color," so the later court petition merely may have recognized a prior understanding between master and slave.(fn1) Benjamin Spaulding and his wife Edith had ten children, and those children eventually married Indians, whites, and other blacks.(fn2)

So, a complicated history of miscegenation was in place long before my parents met in college and decided to marry. Still their choice was not easy. They married within a year of the Supreme Court decision in Loving v. Virginia(fn3) My mother's family initially disowned her, and it took years before many of them could even so much as meet my father's eye. My parents told me about Loving, and I remember feeling dumbstruck by the idea that a law of any kind might have prevented my parents' marriage if they had lived in the wrong state. Even though the decision struck down anti-miscegenation laws, the thought of it-of such laws and of the need for judicial intervention in something so intimate, so idiosyncratic, so private-provoked a kind of vertiginous feeling I can now identify as bordering on the existential. The proximity between law and my being, my parents' well-being, was revealed in a way that made my identity seem more fragile and contingent than I think any child's should.

If I had not already, at that moment, resolved to be a lawyer, to master the thing that seemed then so opaque and powerful, meeting my father's friend, a black lawyer from Los Angeles who in the 1970s was working entertainment deals with black musicians, sealed the deal. I have long since lost the pre-release Stevie Wonder LP of Hotter Than July he gave me for my ninth birthday, but the idea that law could offer access both to the Constitution and racial equality on the one hand, and to Stevie Wonder on the other, was too much to resist. My father's friend was a Porsche-driving Thurgood Marshall in my imagination, and the poorer my family became, the more being a lawyer came to symbolize the ultimate professional endeavor-justice, Rhythm and Blues, and a good salary.

Those of you old enough to remember the Hotter Than July album will perhaps understand how I conjured this fantastic melange of social justice and Motown professionalism. The song "Happy Birthday" on the album was dedicated to Martin Luther King, Jr., and the sleeve liner featured a large photograph of Dr. King with text below making an impassioned plea to make January 15th a national holiday in recognition of "what he achieved and as a reminder of the distance which still has to be traveled."(fn4) On the back of the sleeve liner was a collage of photographs depicting bloody moments in the civil rights movement. In the center is a shot of Dr. King walking, head up, leading a throng of marchers. In my mind at the time, he seemed to be walking toward the law, and it seemed that the vindication of his claims in the law would draw the country out of the racial terror and chaos visible in the surrounding shots.

I say all of this because, having been asked to talk about Judge Fletcher's influence in the area of race and the law, and in sitting down to read her opinions stretching back thirty years, I have been struck anew by the tension between what I then saw as the promise of civil rights law, and what it has become. I was not naive about the promise of law. Loving taught me not that anti-miscegenation laws were unconstitutional, but that they had been perfectly legal for three hundred years of our history. Seeing my mother and father arrested on false charges when our white landlord called the sheriff because my father had the audacity to refuse to pay rent on grounds of the implied warranty of habitability had already revealed the double-jointedness of formally neutral legal rights and procedures, had already shown me how discriminatory practices move in, through, and beyond legal categories to find expression in and reinforce entrenched social norms.

But there was a real promise in the momentum depicted at the center of the collage on the back of the sleeve liner, a sense that law could vindicate justice, not just stand in the way. To identify law with the photograph of King marching, as I did, rather than with the helmeted white cops in the surrounding scenes of riot and bloodied black bodies, was a promise in itself. The most ambitious term of the promise was that in a constitutional democracy that rather embarrassingly came to have to formally guarantee equal protection of the laws, the institutions of law could work to make that guarantee something more than a glittering constitutional generality.

The appointment of Judge Fletcher to the Ninth Circuit Court of Appeals was a manifestation of this promise, but we all know what happened with anti-discrimination law in the Supreme Court in the decades following.

In the area of school desegregation, the Court moved from conferring generous discretion on lower courts to enter effective remedial decrees in Swann v. Charlotte-Mecklenburg Board of Education(fn5) in 1971 to a series of more restrictive standards in Milliken v. Bradley I(fn6) and II(fn7) in the mid-1970s and the Missouri v. Jenkins cases(fn8) in 1990 and 1995, and finally to striking down even voluntary desegregation decrees in Parents Involved in Community Schools v. Seattle School District(fn9) in 2007.

In the area of affirmative action, the fairly narrow windows opened by Regents of the University of California v. Bakke(fn10) in 1978 and Fullilove v. Klutznick(fn11) in 1980 were closed in a...

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