The purpose of this Article is to play out the various conceptualizations of the black equality interest in post-civil rights America. How is the claim of juridical subordination manifested in current Supreme Court cases, and what might civil rights law look like if the Court were to avoid juridical subordination? Our ambition is not to analyze every landmark Supreme Court civil rights case—page limitations prevent us from doing that—but to provide a framework for analysis, setting the table for the juridical subordination inquiry. Furthermore, we do not here attempt to reconcile the disparate ways in which the black equality norm is defined, because that might preempt important discussion that needs to take place before any such attempt is made.
We begin with a discussion of the Supreme Court’s inglorious racial history, which forms the backdrop for the Brown opinion, and then proceed to a discussion of the Brown opinion itself (Part I). The former discussion not only lays the foundation for our assessment of the motivation behind the Court’s desegregation ruling in Brown, but also educates those who live with the misconception that the Supreme Court has been an unwavering champion of racial advancement. It has not; hence the strict scrutiny it receives to this day from civil rights scholars. Finally, we discuss the elements of juridical subordination—the black equality interest and implementing law—looking at both the civil rights and post-civil rights periods (Part II).
Roy L. Brooks & Kelly C. Smith,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol52/iss4/5