The author explains his conclusion that the Supreme Court, as a matter of conscience, considers racial discrimination to be good for America. That conclusion, he argues, offers the only plausible account of the Court's repeated insistence on displacing populist efforts to promote racial equality with the Court's own, more-regressive, version of expedient racial politics. Although the Court has had what is at best a checkered history when called upon to adjudicate claims of racial injustice, until now, the contemporary Court might arguably have been accorded the benefit of the doubt. But after its five-to-four ruling in the 2007 Resegregation case, the need to acknowledge the influence of intentional discrimination on the Court's racial decisions seems inescapable.
In part I of this article the author discusses the Resegregation case (parents involved in Community Schools v. Seatle School District No. 1) and describes how difficult it is to view that case as anything other than a deliberately disingenuous distortion of Brown v. Board of Education. In part II he describes Krugman's account of the ways in which movement conservatism has enlisted tacit appeals to white racial prejudice as a strategy for prompting white middle-class citizens to vote in ways that are consistent with the interests of the rich rather than the interests of the middle class. Part III describes the author's view of the interaction between movement conservatism and Supreme Court constitutional hegemony, arguing that this interaction creates a judicial plutocracy that can use race to advance the political agenda of the wealthy. The article concludes by expressing the hope that the Supreme Court so overplayed its hand in the Resegregation case that the Court will no longer be able to pass off its conservative racial agenda as the product of detached constitutional exposition. However, the author states that he offers this conclusion with a healthy dose of pessimism, rather than the sense of pragmatic anticipation.
63 U. Miami L. Rev. 431-474 (2009)
Scholarly Commons Citation
Spann, Girardeau A., "The Conscience of a Court" (2009). Georgetown Law Faculty Publications and Other Works. Paper 828.