Document Type

Article

Publication Date

2005

Abstract

Race matters, but judges and courts have failed to fashion a rule of law that is inclusive of all racial perspectives and realities in the United States. The reason for this dismal performance lies in how predominantly White judges, and therefore courts, conceptualize race. This article illustrates this proposition by analyzing the Rehnquist Court's race relations jurisprudence in three Supreme Court decisions handed down in 2003: Grutter v. Bollinger,Gratz v. Bollinger,and Georgia v. Ashcroft.Even as the United States Supreme Court entered increasingly complex areas of race relations, the Court continued to apply a simplistic concept of how race functions. The result is that without theoretical grounding, the development of constitutional doctrine in this controversial and divisive area appears to be ad hoc and arbitrary.

Making the bench more diverse could be an avenue that leads to a better understanding of racial issues by judges and thus could result in an inclusive rule of law that takes into account both majority and minority racial perspectives. The article examines the empirical literature as to whether greater diversity of the bench actually leads to different rule-making and concludes that the evidence is equivocal. But rather than concluding that gender and racial diversity have no impact on the rule of law, it may be fairer to assert that empirical research simply has not yet been able to adequately test the hypothesis that the presence of more minorities on the bench could lead to an inclusive rule of law.

This article first proposes a theory of how a pluralistic process-based model of judging could achieve a more inclusive rule of law. In a pluralistic process-based model of judging, courts are charged with: first, getting thecontent “right” of minimum substantive rights; second, ensuring that in the development of the rule of law, the realities of both racial majorities and racial minorities are incorporated; and third, being cognizant that courts must balance their role as ultimate constitutional decision-maker with deference to the political process. The give and take of political disagreement might allow majorities and minorities the opportunity to work out deep disagreements. This model is admittedly difficult to attain in reality.

Nonetheless, the article then proposes that true diversity on the bench is a minimum prerequisite to achieving such a judicial ethic and that Grutter v. Bollinger can be read to support this proposition. Grutter holds that it is a legitimate state objective for key democratic institutions, like a public university (or in the instant case a judicial body), to want to achieve discursive diversity.

Further, the article examines how politics work against achieving a critical mass of minority judges on the bench. In the “real world,” the goal of achieving greater diversity on the bench--let alone achieving a critical mass of minority judges--faces dismal prospects. First, the ugly politics of judicial nominations means that minority appointees can be easily shot down. Second, the reality of how stereotypes work against minorities means that minority candidates in judicial elections often lose.

This article concludes that political dialogue engendered by controversial minority judicial nominations, like those of Miguel Estrada and Janice Rogers Brown,could be an avenue to educating the polity as towhy it is important to achieve greater minority representation on the bench. The pluralistic process-based model of judging advocates that a critical mass of diverse judges be achieved, not that the minority judges be liberal rather than conservative, communitarian rather than individualist, or Democrat rather than Republican. The goal is that there be a critical mass of minority judges on benches that make decisions as a group, like circuit courts and supreme courts. This ideal is one towards which pluralist polities must strive.

Publication Citation

10 Mich. J. Race & L. 101 (2005).