Yuvraj Joshi (Fellow, Yale Law School) has posted to SSRN his article, Racial Transition, 98 Wash. U. L. Rev. (forthcoming 2021). Here is the abstract:
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 discussed and sometimes even denied. This Article demonstrates how the pursuit of “racial transition” has shaped the Supreme Court’s racial equality opinions.
By analyzing opinions concerning school desegregation, voting rights, affirmative action, and disparate impact, this Article uncovers two main ways that the Supreme Court has pursued racial transition. While earlier 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With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. Understanding these different frameworks 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 reveals how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited the United States’ racial transition. 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 seems poised to leave the past behind. This Article considers how racial justice advocates can seek to reorient the Court’s jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.
The full article is available here.