TOURO LAW JOURNAL OF RACE
CHRISTIAN B. SUNDQUIST
The Supreme Court's recent term decisions embody a troubling cultural shift in the way in which society views issues of inequality and discrimination. The very existence of identity-based inequality and bias is questioned under this burgeoning post-oppression weltanschauung, which posits that modern society has moved beyond matters of racial, gender, sexual orientation, and class justice. Under the post-oppression socio-political view, systemic and explicit discrimination is disregarded as aberrational in nature, while existing inequality is rationalized as reflecting natural outcomes. 1 The “normalization” of social inequality provides substantial legal, social, economic and cognitive benefits for holders of privilege.2 And yet our society continues to struggle with issues of difference while disparities along racial, gender, and class lines endure and deepen.3 The persistence of identity-based inequality and discrimination poses a cognitive-moral dilemma for those who hold the post-oppression worldview. The post-oppressionist's belief that society has achieved a state of democratic equality of opportunity is disrupted by evidence of growing social inequality and discrimination.4 The artifice of race first developed as one socio-political tool to mediate this tension, by separating persons into categories legally sanctioned for discrimination and unequal treatment.5 Gender difference has also long been used to rationalize the unequal treatment of women,6 as have differences in sexual orientation 7 and class status. 8 The creation of the “other,” therefore, has historically been vital to attempts to rationalize the persistence of inequality.9 1 See generally Christian B. Sundquist, Equal Opportunity, Individual Liberty and Meritocracy in Education: Reinforcing Structures of Privilege and Inequality, 9 GEO. J. ON POVERTY L. & INEQUALITy 227 (2002). 2 See Adrienne D. Davis & Stephanie Wildman, Language & Silence: Making Systems of Privilege Visible, 35 SANTA CLARA L. REV. 881 (1995). 3 See Christian B. Sundquist, Genetics, Race and Substantive Due Process, 20 WASH. & LEE J. OF CIVIL RIGHTS & SOC. JUSTICE 341 (2014) (manuscript on file with author). 4 Id. 5 Id. 6 See Donna Young, Working Across Borders: Global Restructuring and Women's Work, 2001 UTAH L. REV. 1, 4-5 (2001). 7 See generally Nancy Ota, Flying Buttresses, 49 DEPAUL L. REV. 693 (2000). 8 See generally Peter Halewood, Law's Bodies: Disembodiment and the Structure of Liberal Property Rights, 81 Iowa L. Rev. 1331 (1996). 9 See Anthony Paul Farley, The Apogee of the Commodity, 53 DEPAUL L. REV. 1229, 1231-32 (2004).
Various conceptual vehicles have been utilized over time to perform
the “normalization” function, including culture of poverty theories, classic
market theories, equal opportunity doctrine, and familial ideology. 10 The
post-racial perspective is a more recent manifestation of the attempt to argue
that this nation has moved beyond oppression.11 And yet the cognitive and
moral desire felt by privilege holders to normalize inequality is not limited to
matters of race. Rather, the modern socio-judicial trend to normalize
inequality is characterized by a spurious belief that society has altogether
moved beyond matters of oppression- racial, economic, gender or otherwise.12
The Court’s decisions during the most recent term embody this move
beyond oppression. During the summer of 2013, the Court rolled back critical
civil rights advances in the voting rights, 13 affirmative action, 14 employer
discrimination15 and criminal justice contexts.16 In Fisher v. Texas the Court
made it much more difficult for educational institutions to consider race in
admissions, 17 despite disturbing patterns of re-segregation and increasing
racial disparities in higher education.18 In a pair of Title VII cases, the Court
issued rulings that made it more difficult for plaintiffs to prevail in
employment discrimination cases, speculating that heightened causation
standards were necessary to reduce the “tempt[ation]” of racial minorities
and women of making “unfounded charge[s] of… discrimination.” 19 The
Court in Maryland v. King also held constitutional the forcible collection of
DNA samples for persons merely arrested on suspicion of committing a crime,
despite the fact that such collection disparately impacts racial minorities.20
The Court’s decision in Shelby County v. Holder, however, is perhaps
the most telling example of a judicial worldview that society has transcended
10 See e.g., Brenda Grossman, Turning the Gaze Back on Itself, in ADRIEN WING GLOBAL CRITICAL
RACE FEMINISM: AN INTERNATIONAL READER (2000), at 31 (discussing “familial ideology” and the
ways in which law attempts to normalize gendered roles in the family).
11 See generally Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589 (2009).
12 See Farley, supra note 9, at 1240 (“equality is the most covert hiding place for, and the most
effective mask of, oppression”).
13 Shelby Cnty. v. Holder, 133 S.Ct. 2612 (2013) (striking down Section 4 of the Voting Rights Act
of 1965 on Fifteenth Amendment and federalism grounds).
14 Fisher v. Texas, 133 S.Ct. 2411 (2013) (holding that educational institutions should receive no
judicial deference concerning whether “the means chosen.to attain diversity are narrowly
15 Vance v. Ball, 133 S.Ct. 2434 (2013) and University of Texas v. Nassar, 133 S.Ct. 2517 (2013).
16 Maryland v. King, 133 S.Ct. 1958 (2013).
17 Fisher v. Texas. 133 S.Ct. 2411.
18 See generally Derek Black, Voluntary Desegregation, Resegregation, and the Hope for Equal
Educational Opportunity, Hum. Rts., Vol. 38, Fall (2011).
19 Nassar, 133 S.Ct. at 2532; see also Vance, 133 S. Ct. at 2434.
20 See Maryland v. King, 133 S.Ct. at 1970. See also Sundquist, supra note 3.
structural problems of social inequality. In Shelby County, the Court
rendered the most vital section of the Voting Rights Act unconstitutional.21
Declaring that “[o]ur country has changed,” the majority deployed the
postracial trope of “racial progress” to invalidate the centerpiece legislation of the
Civil Rights Era.22 The Court’s use of post-racial language and reasoning
abounds in this classic Roberts opinion:
“[t]here is no denying…that the conditions that originally
justified the [Voting Rights Act] measures no longer
characterize voting [conditions]”;23
“[n[early 50 years later, things have changed dramatically”;24
“[b]latantly discriminatory evasions of federal decrees are
Reauthorization of the Act occurred “as if nothing had
“the conditions justifying [the Voting Rights Act’s
requirements] have dramatically improved”;27
“[t]here is no longer such a [racial] disparity” “justifying the
“[t]oday the Nation is no longer divided along those lines” (in
terms of racial disparities in voting registration);29
“[t]he [Fifteenth] Amendment is not designed to punish for
“[Congress] cannot rely simply on the past” (history of racial
“no one can fairly say that [the record] shows anything
approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and
‘rampant’ discrimination that faced Congress in 1965”;32
“40-year-old facts hav[e] no logical relationship to the present
“[o]ur country has changed, and while any racial
discrimination in voting is too much, Congress must ensure
that the legislation it passes to remedy that problem speaks
to current conditions.”34
As a result of the Shelby County decision, as well as the Court’s
embrace of the post-racial narrative, states previously under federal review
have begun to implement rigid voting requirements that likely will have the
effect of disenfranchising scores of minority voters.35 As a result of the Fisher
and Parents Involved decisions, educational institutions have found it
increasingly difficult to respond to disturbing patterns of re-segregation. As a
result of the Maryland decision, racial disparities in criminal justice will
likely increase as DNA samples can now be obtained upon mere arrest. As a
result of the Vance and Nassar cases, employees find it more difficult to
redress racial and gender based discrimination. Put simply, the Court’s
recent term is emblematic of a broader trend to disregard the reality of
continuing discrimination while adopting a worldview that has the effect of
exacerbating identity-based disparities.
How can we disrupt this burgeoning post-oppression and post-race
worldview? The essays contained in this special Shelby County volume of the
Touro Journal of Race, Gender and Ethnicity may well point justice advocates
in the right direction.
34 Id. at 24.
35See Jerry H. Goldfeder , After 'Shelby County' Ruling, Are Voting Rights Endangered?, Brennan Center for Justice (Sept. 23 , 2013 ), available at http://www.brennancenter.org /analysis/aftershelby-county-ruling-are-voting-rights-endangered) (last visited Oct . 9 , 2013 ).