A Theory of Racialized Judicial Decision-Making

Raquel Muñiz September, 2023

Abstract: In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decisionmaking, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, (2) color-evasive approaches as effective tools to justify racially disparate outcomes, and (3) the elevation of racial discrimination into a status of exceptionalism that justifies heightened standards in proving racial anti-discrimination claims. I argue that the racialized judicial decisionmaking process reproducing the social racial hierarchy is institutionalized via the legitimacy courts wield. I conclude with a discussion on the agency and autonomy inherent in the judicial decision-making process, emphasizing judicial decisionmaking is not simply a reflection of ideology—personal or otherwise—individual biases, or cultural tides, and can as a system be leveraged to further racial equity in a democratic society.

I. Introduction

Consider the following instances: justices reasoning that segregation laws are racially discriminatory only in Black people’s minds.¹ Judges framing people of color as seeking outrageous, unmerited legal remedies, before denying them a legal remedy.² Litigants of color claiming the president made racist comments against them, but the Court reframing the comments as non-racist and at most merely critical.³ A judge tearing up while discussing the humanity of a white defendant, followed by a relatively light sentence.⁴ Judges framing Black defendants as less deserving of lighter sentences before deviating from sentencing guidelines, giving them substantially longer sentences than similarly positioned white defendants.⁵ Judicial language framing men of color as dangerous and more prone to violence.⁶

Each of these instances involves what I call racialized judicial decisionmaking —a process in which judges connect racialized schematic thinking into durable, systemic structures that resolve disputes before them and reproduce and institutionalize the social racial hierarchy.⁷ Through the process, judges attach racial meaning to seemingly neutral processes.⁸ In racialized judicial decision-making, judges assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities.⁹ The process occurs within and across different areas of law, creating systemic, institutionalized, and lasting racial structures, given the institutional power the law occupies in society.¹⁰

Scholars of race and the law have long argued that courts contribute to the reproduction of the racial hierarchy.¹¹ The outcomes of court rulings are racialized, showing differential outcomes across ethnoracial groups.¹² This Article builds on and furthers this legacy of scholarship on race and the law by introducing a theory explaining how the judicial decision-making process as a system itself is racialized, beyond individual biases and ideologies that explain particular legal doctrines in specific areas of law. That is, I focus on how the construct of race shapes the judicial decision-making process as a system, building off of theories that have offered evidence of the racialized outcomes of judicial opinions. By taking a step back to theorize how judicial decision-making as a systemic process is constitutive of race and ultimately reproduces the social racial hierarchy, I draw the focus to how we can create change toward racial equity¹³ through the decisionmaking process itself.

I begin my argument in Section II.¹⁴ Because my focus remains on the process of judicial decision-making as a system, in this Section, I explore prior judicial decision-making theories.¹⁵ Theories advancing an understanding of judicial decision-making have offered lenses grounded in behaviorist theories (e.g., rational decision-making) and attitudinal models (e.g., biases and experiences), a body of work to which both social scientists and legal scholars have contributed.¹⁶ Yet, in these theories examining judicial decision-making, the role of race and racialization is largely absent.¹⁷

I then turn to the literature of scholars of race and the law.¹⁸ They have laid the conceptual foundation showing the courts’ role in maintaining the pernicious racial hierarchy.¹⁹ Identifying the need for a body of work critiquing the role of the law in reproducing racial inequality, these scholars introduced conceptual tools that interrogated the majoritarian narrative governing the legal field; namely, that the law is a neutral and insular institution.²⁰ They furthered understandings regarding the institutionalization and reproduction of the racial hierarchy via the courts.²¹ I aim to expand this rich body of work by offering a nuanced account of how the judicial decision-making process itself, across doctrines and issues, is constitutive of race, a phenomenon that cuts within and across areas of law.

In the next Section (III), I integrate further conceptual groundwork that undergirds my proposed framework.²² Drawing on the work of sociologists of race and ethnicity, I introduce schematic thinking as a phenomenon integral to the ubiquity of pernicious social racial hierarchies.²³ Cognitive schemas are “taken-for-granted” mental maps or rulebooks individuals use to assess, simplify, and make decisions in situations, which often involve complex issues and multiple stakeholders.²⁴ Race qua mental maps encodes the racial hierarchies.²⁵ The hierarchies are contextually activated and become durable structures when connected to material resources and power within their social contexts.²⁶ In the aggregate, these individual actions connecting racialized cognitive schemas to resources and power create system-level reproduction of the racial hierarchy.²⁷ Schematic thinking is important in understanding the racialization of judicial decision-making as an aggregate phenomenon leading to the institutionalized systemic reproduction of the racial hierarchy.

Building on this conceptual ground and integrating the analysis of micro-level action (i.e., judicial decision-making) to understand macrolevel phenomenon (i.e., a racialized legal system), I introduce the framework of racialized judicial decision-making.²⁸ I argue that judicial decisionmaking is a racialized process in which racialized cognitive schemas bound the decision-making process.²⁹ Judges transpose these bounded racial schemas into their decisions (e.g., judicial opinions) by assigning legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities.³⁰ This behavior is systemic—individual-level action that leads to a macro-level pattern of racialization that has evolved over time across the court systems and remains two decades into the twenty-first century.³¹ After offering this proposition, I introduce three mechanisms at play in racialized judicial decision-making: (1) whiteness³² as capital that increases epistemic advantages in the judicial process,³³ (2) color-evasive³⁴ approaches as effective tools to justify racially disparate outcomes,³⁵ and (3) the elevation of racial discrimination into a status of exceptionalism that justifies heightened standards in racial anti-discrimination claims.³⁶ I conclude this Section with a discussion regarding the institutionalization of the racial hierarchy via the judicial decision-making process, given the legitimacy courts wield in society.³⁷

Next, I turn to a discussion and the implications of my theory in Section IV.³⁸ By reframing judicial decision-making as being constitutive of race (i.e., racialized), the framework raises questions regarding the role of judges in collectively reproducing the racial hierarchy via their decisionmaking process.³⁹ I argue that one important source of power judges hold in judicial decision-making is agency, even within disciplinary constraints, and this agency can be used to disrupt hegemonic, durable, racialized structures.⁴⁰ Agency has allowed judges, for instance, to shape legal doctrine in ways that constrict the pathways to advance racial equity, making it difficult for litigants who are predominantly of color to prove racial discrimination.⁴¹ Similarly, to follow precedent without interrogating it allows the reproduction of prior racialized structures.⁴² This is the case even when done inadvertently, because the system is racialized; to recreate its patterns requires only implementation and reproduction of prior patterns.⁴³ Agency thus is key in reshaping judicial decision-making in ways that disrupt the racial hierarchy.⁴⁴ I conclude the Article with thoughts on the invaluable role judicial decision-making can play in furthering racial justice in a democratic society.⁴⁵

II. The Courts, Judges, and Race

Together, the theories I discuss below, though not exhaustive, highlight the long-standing ongoing debate in the legal field: is the process of judicial decision-making objective and neutral or informed by the social context? This debate has divided scholars into two broad camps: on one hand, those who argue for legal formalism and, on the other, those who argue the legal system is not insular but rather intricately connected to, influencing, and being influenced by, society.⁴⁶

A. Judicial Decision-Making and the Absence of Race

1. Social Theories

As the law has gradually developed as its own science, scholars and practitioners have theorized about how the process of judicial decisionmaking occurs. Commentaries in the early nineteenth century connected judicial decision-making with a deity.⁴⁷ In this paradigm, the law of the land was merely an extension of divine law, and judges were vessels who translated the law for mortals on earth.⁴⁸ Judicial decision-making was thus deeply intertwined with religion, and has remained so, given the history and development of the religious context in the United States.⁴⁹ Early in the twentieth century, legal realists directly contested the claim that the law was an extension of divine law, calling it “transcendental nonsense.”⁵⁰ To them, the law and its interpretation were not divine but rather a product of human creation and processes.⁵¹ They proposed an alternative explanation: judges engage in decision-making guided by their hunches.⁵² These scholars argued that the “judicial hunch” was rooted in “deeper psychological imprints” that judges developed as a result of their intellect and life experiences.⁵³ In this context, judicial decision-making, as reflected in judicial opinions, was merely the intellectualization of the judge’s desired results,⁵⁴ purposefully crafted to support the predetermined outcomes and rationalizing away any conflicting precedent.⁵⁵ Judge Richard Posner, however, thought naïve the claim that anyone could discern the process of judicial decision-making from judicial opinions.⁵⁶ But whether judicial opinions can give key candid insights into the judicial decisionmaking process, what judges include in these opinions has institutional power and therefore is important.⁵⁷ Judicial opinions, unlike other processes that occur behind the metaphorical curtains, have binding power.⁵⁸

Social scientists have also contributed to the field’s understanding of judicial decision-making by examining it in relation to social contexts.⁵⁹ Using attitudinal models, scholars have found that judicial decision-making is guided, in part, by judges’ attitudes.⁶⁰ Such a model has had statistical power to help explain the behavior of Supreme Court justices.⁶¹ For example, Segal and Spaeth found a 0.78 correlation coefficient between the justices’ ideologies and their behavior on the Court, “demonstrating that the justices’ ideology explains exceedingly well their aggregate voting behavior.”⁶² Studies have also found that judges’ decision-making is influenced by the stakeholders they engage in the process. For example, “Democrats (Republicans) sitting on a panel with a Republican (Democratic) majority are much more likely to vote conservatively (liberally) than they otherwise would, at least on less salient issues . . . . And the presence of women and minorities on panels independently influences the decisions of those who sit with them.”⁶³

Largely absent from the discussion is the role of race in shaping the judicial decision-making process. There have been studies and scholarship that acknowledge the role of race in judicial outcomes, however.⁶⁴ For instance, empirical studies examining the ethnoracial representation of administrative judges and parties claiming racial discrimination in the employment context have found that the judges’ race and ethnicity has an impact on the outcomes of the cases.⁶⁵ For example, Black litigants are more likely to be successful in their cases when the administrative judges are Black as well.⁶⁶ Similar patterns hold for claimants of other races and ethnicities.⁶⁷ This body of literature is consistent with and supported by studies beyond the judicial decision-making process: research has consistently found that ethnoracial representation is often correlated with desirable outcomes for those whom they represent.⁶⁸ For instance, in the education context, when teachers of color share the racial identity of their students, students of color experience less disciplinary demerits,⁶⁹ more referrals to gifted and talented programs,⁷⁰ and overall greater academic success.⁷¹ In other words, ethnoracial representation is an important and widely prevalent social phenomenon.

Other studies examining the role of race in the courts have found and measured the overrepresentation of certain ethnoracial groups in particular types of legal cases.⁷² These studies have documented the disproportionate negative impact ethnoracial minoritized⁷³ communities experience in the court system.⁷⁴ For example, studies have found Black and Brown women are more likely to be incarcerated or receive harsher sentences than other defendants similarly situated.⁷⁵ Similarly, empirical research has found the overcriminalization via sentencing of Black men compared to other ethnoracial groups.⁷⁶ These and other empirical studies collectively shed light and evidence to support the claim that legal outcomes are racialized.⁷⁷ I build on this body of work by arguing that the process that leads to these outcomes is itself a racialized process.

2. Legal Formalism: A Dominant Disciplinary Paradigm

Much has been written about legal formalism as an approach in the legal field and how the approach informs judicial decision-making, such as judicial interpretation of legal text.⁷⁸ My intent in this Section is not to revisit the validity of legal formalism, but to introduce it in the context of its influence in the law as a dominant disciplinary paradigm. Its reach has become so prominent, I argue, that it has become a dominant paradigm that informs all processes of the discipline, including judicial decision-making.

Legal formalism as a paradigm frames the law and legal processes as capable of being separated from the sociopolitical and cultural contexts in which they are embedded.⁷⁹ Through this lens, the law is an autonomous institution capable of adapting based only on internal processes.⁸⁰ Because the courts are autonomous in their work, precedent plays an outsized role by promoting predictability and reliability in legal outcomes.⁸¹ This frame also emphasizes rationality, objectivity, and neutrality in judicial processes.⁸² Judges within this context arguably play a limited role and are able to leave their ideologies and biases out of the cases they decide.⁸³ Justice John Roberts, a chief advocate of and subscriber to this paradigm, has argued that judges are objective and neutral, and they are umpires calling balls and strikes.⁸⁴ Their role in deciding cases is largely limited to identifying neutral legal principles and applying them to the dispute before them to reach an objective outcome.⁸⁵ Under this view, judges can analyze the facts and apply the law separate from the sociopolitical and cultural contexts underlying the cases.⁸⁶ Judges should not be concerned with these external contexts because they are beyond the purview of the courts.⁸⁷ Such issues are left to political branches, i.e., the legislatures and executive branches, and sociocultural processes.⁸⁸

Though the simplicity of legal formalism may be appealing, social scientists and scholars have found empirical evidence that judicial decisionmaking is more complex and nuanced, and that the social context is difficult to separate from legal processes and outcomes.⁸⁹ While legal formalism has dominated the legal field for centuries, other scholars have articulated the connection between the law, courts, and the sociopolitical and cultural context.⁹⁰ In particular, Critical Race Theory shone light on the connection between the courts and the reproduction of the social racial caste after the civil rights movement.⁹¹ I turn to this discussion next.

B. Contesting Legal Formalism and Race-Evasiveness

The connection between race and the law in American society has a long history that traces back to Anglo-colonial times, which informed the formation of the contemporary society that governs U.S. democracy today. Race in these nascent times became a useful tool to amass and build wealth for those who benefitted from the social construction of whiteness and to exclude others less adjacent to whiteness from doing the same.⁹² Below, I begin with a brief overview of the malleable social construction of race across U.S. history. While not exhaustive, I highlight key points that illustrate how the construction of race has evolved, and how that evolution has led to and maintained racial oppression via a racial caste.

1. U.S. Society and Race

The social construction of race in the United States has evolved over centuries, but its utility as a tool to exclude people from resources and distribute resources unevenly has remained consistent throughout.⁹³ Early Anglo-colonists adopted and adapted the construct of race to organize and establish burgeoning colonies.⁹⁴ While in Europe “white” was reserved for upper class women whose fair skin reflected their staying at home avoiding work under the sun,⁹⁵ in colonial times in the United States, white represented a category to denote kinship amongst Anglo-colonists and differentiate themselves from Black people they enslaved, as well as from Indigenous people who occupied the land they sought to colonize.⁹⁶

The categorical nature of race as a social construct helps to build empathy and commonalities within groups and can sow distrust and encourage a lack of empathy across groups.⁹⁷ This is because a person’s ability to empathize—to stand “in another person’s shoes to feel and think as they do”—is easier when the other person shares similar backgrounds, experiences, and contexts to the person.⁹⁸ Conversely, the lack of shared commonalities can lead to less empathy as a person fails to fully relate to another and instead relies on stereotypes.⁹⁹ In the United States, race as a categorical scheme encoded notions of superiority, humanity, and deservingness in connection to the white category and inferiority and un-deservingness for nonwhite categories.¹⁰⁰ This value-laden categorical scheme placed white supremacy as supra-ordinate in social relations, and this hierarchical characteristic had concrete societal impacts for inequality.¹⁰¹

The notion of white superiority became taken for granted across all social relations, and other social processes, actions, and tools became racialized.¹⁰² The popular discourse explicitly linked non-whiteness to labels such as “savage,” “non-human,” and “inferior.” Such value-laden relational linkages across ethnoracial groups reinforced the notion that some racial groups and categories were more deserving of what was deemed to be scarce resources and justified the violent dispossession and appropriation of land away from Indigenous people, whom white colonists labeled savage and not deserving. Moreover, religion, language, accents, choice of clothing, and music, to name a few, became associated with whiteness to varying degrees.

The law played a profound role in organizing the racial hierarchy and institutionalizing an unequal racialized status quo. Scholars have conceptualized institutions as “the rules of the game in a society—humanly devised constraints that shape human interaction. They structure incentives in human exchange, whether political, social, or economic.”¹⁰³ The law as an institution legitimized the unequal treatment by giving it the weight of the government.¹⁰⁴ The law organized social behavior through concrete incentives, such as land grants for white people who claimed and occupied Indigenous land beyond small New England communities.¹⁰⁵ Simultaneously, the law shaped social behavior by explicitly excluding Black and Indigenous people from legal rights and prohibiting them access to opportunities reserved for those associated with whiteness.¹⁰⁶ In an egregious extreme, the dominant racial class deprived Black people from their own liberty by enslaving them.¹⁰⁷ The choice to enslave Black people not only reinforced notions of who was considered human and deserving of liberty, but also exploited Black people, who were considered highly skilled, to maximize profit and concentrate wealth within the supra-ordinate racial class: those associated with whiteness.¹⁰⁸ Through explicit codification of racial classifications, the law relegated nonwhite people to subpar access and resources.¹⁰⁹

The geographical expansion of the nation south/west-ward, as well as the change in national migration patterns, continued to complicate the socially constructed and legally legitimized racial structures and caste.¹¹⁰ A narrow, static conceptualization of white was not effective in preserving supra-ordinate domination of white episteme in society.¹¹¹ Conceptions of whiteness iteratively expanded to encompass new immigrants from European and Slavic regions, many who shared similar physical outward appearances, disposition, and characteristics to those already racialized as white in the United States.¹¹² In its power to exclude and define itself,¹¹³ whiteness also excluded Asian immigrants¹¹⁴ and Latin American immigrants¹¹⁵ from its adapted conceptualization. To justify unequal distribution of resources and skew power towards the dominant racial class, whiteness could not engulf all other categories into it.¹¹⁶ The exclusionary categorical racial caste allowed the continued exploitation of those othered as nonwhite to the benefit of building the wealth of a select few.¹¹⁷ The law remained a key tool in shaping the racial caste and legitimizing unequal distribution of resources after the Civil War.¹¹⁸ For instance, states adopted Jim Crow laws excluding Black and Brown people from equal opportunities after the end of slavery,¹¹⁹ and the U.S. Congress adopted the Chinese Exclusion Act of 1882¹²⁰ and similar racially exclusionary laws that permitted the exploitation of the labor of nonwhite people, while denying these same people the protections the white population enjoyed.¹²¹

Conceptions of race, racism, and social inequality underwent a substantial transformation during the twentieth century, leading up to and post-the civil rights era.¹²² Prior to the civil rights era, racism involved overt acts by law, policy, and individual practices.¹²³ White supremacy was formal and explicit.¹²⁴ The courts largely upheld the racial distinctions, allowing the unequal distribution of access and resources.¹²⁵ However, civil rights advocates in the twentieth century successfully called attention to racial inequality at the time.¹²⁶ The movement led to changes in federal and state laws and policies, formal social structures, as well as a shift in the public discourse.¹²⁷ The majoritarian narrative advocated for equality and espoused that this was an attainable goal while maintaining racial segregation.¹²⁸

A major shift in public discourse and law regarding racial segregation occurred in 1954.¹²⁹ The Supreme Court, with Thurgood Marshall as lead advocate representing the plaintiff children, delivered Brown v. Board of Education , which found that racial segregation even with equal distribution of resources was inherently unequal in education.¹³⁰ Scholars of race and the law, using a critical lens, have argued that in the 1950s, the United States was at the time fighting a war abroad and sought to portray itself as a beacon of hope and liberty for all, without regard to race or ethnicity.¹³¹ Ruling in favor of racial integration helped to solidify the public image it sought to portray.¹³²

The ruling only addressed de jure racial segregation (i.e., formal white supremacy) and not the underlying white supremacy and racial caste dominating sociocultural relations.¹³³ Thus, these underlying sociocultural dynamics adapted to thrive in the new formal legal regime, a regime that admonished only explicit racism and white supremacy.¹³⁴ After Brown , the predominantly white majority engaged in policies and practices that covertly maintained the racial caste. For example, they resisted school integration, eventually citing not racial segregation as the goal but the importance of district boundaries and principles of merit, deservingness, and hard work, notions historically associated with distinct racial categories.¹³⁵ These principles and notions adopted a color-evasive approach (i.e., no mention of race), though the default standards for the meaning of merit, deservingness, and hard work remained related to characteristics and dispositions that had historically been cultivated within and came to be associated with whiteness.¹³⁶ In essence, whiteness remained the norm without needing to be explicitly expressed as such.¹³⁷ Moreover, with whiteness serving as the default, advocates of racial progress were forced to conform to some or most of the norms expected by whiteness to achieve minor forms of racial progress.¹³⁸ For example, majority white communities advocating against racial integration in schools could on the one hand claim they harbored no animosity towards Black and Brown children, while upholding race-evasive policies and practices that continued to negatively impact Black and Brown children who did not meet the standards that never had them in mind.¹³⁹ This forced advocates of racial progress to largely ignore the racialized nature of the issue and engage claims of neutrality as legitimate in an otherwise racialized context.¹⁴⁰

The sociopolitical and legal approach of claiming racial neutrality while ignoring the racial injustices that continued to leave nonwhite people with less access to resources, solidified in the 1960s-1980s.¹⁴¹ Politicians used coded language that signaled racial segregation was best for society and racial inferiority should be taken as a given; the coded language, such as “hard-working” to denote white Americans or “dangerous inner cities” to denote racially segregated, predominantly Black neighborhoods, replaced prior explicit racial slurs.¹⁴² Through coded language and dog whistles, politicians were able to coalesce predominantly white voter blocks behind race-evasive ideas that allowed them to claim their support for social equality while still advocating for laws that negatively impacted communities of color.¹⁴³ The public rhetoric also reinforced a scarcity mentality and the importance of rugged individuality to build wealth; racial disparities thus became thought of as individual moral failings and not issues that continued because of the concerted coordination of laws, policies, and individual practices.¹⁴⁴ Exceptionalism also became the norm: ethnoracially minoritized individuals who were able to overcome systemic challenges showed that others who did not achieve merely failed to work hard.¹⁴⁵

Through several Supreme Court appointments, the ideological makeup of the Court also had implications for the evolution of the legal doctrine governing racial equality.¹⁴⁶ Justices with conservative ideologies came to draw key distinctions among conceptions of racial discrimination, adopted new standards, and erased the goal of racial justice that Brown had placed at the center of racial discrimination claims.¹⁴⁷ The Court distinguished between de jure and de facto segregation—the former required governmental action and therefore merited court intervention, while the latter was attributed to sociocultural tides and therefore did not merit legal intervention.¹⁴⁸ Rothstein in The Color of Law contests this binary, tracing alleged racially neutral government action to racial segregation.¹⁴⁹ This distinction narrowed the Court’s conceptualization of public actions such that few issues fell under government action and would thus merit court intervention.¹⁵⁰ The Court also adopted strict scrutiny as the standard of review: the government must show they have a compelling reason for intentionally adopting racial categories and that the state action is narrowly tailored to those governmental ends.¹⁵¹ Lastly, the Court adopted a broad formal conception of what race discrimination means: racial discrimination means different treatment across races,¹⁵² and the use of race in government action is largely only justified when diversity (broadly defined) is the goal.¹⁵³ The aggregate implications of these changes can be summed up as follows: discussions of race in government action became oriented towards diversity for all without context or regard to historical developments, eroding Brown ’s promise of racial justice, and further protecting covert white supremacy.¹⁵⁴

By the 1990s, race-evasive rhetoric became well-established as the status quo both socially and in the legal system.¹⁵⁵ While the racial injustices that civil rights leaders shone light upon had yet to be redressed, U.S. society saw a retrenchment of racial equity issues during this era, given the shift in conceptions of race and racism in society and in the legal system.¹⁵⁶ Scholars who have studied racial dynamics and racism from this era onward have continued to find empirical evidence of the disproportionate negative outcomes that laws, policies, and individual practices continued to have on people of color.¹⁵⁷ Yet the color-evasive majoritarian narrative obfuscates the connection between the laws, policies, practices, and the negative outcomes, consistently blaming the repercussions on people who have been historically oppressed.¹⁵⁸

In the twenty-first century, the evasion of racism and consequent negative repercussions on people of color have remained the status quo.¹⁵⁹ Many, including people of color, have continued to empirically study and speak against the effects of racism in society.¹⁶⁰ Yet, the majoritarian narrative has labeled these narratives ontologically deficient, while simultaneously reinforcing and centering white episteme.¹⁶¹ Moreover, a new phenomenon has also emerged in the twenty-first century: stakeholders seeking to stall or reverse racial progress have co-opted the language and strategies that civil rights activists employed to advance racial justice.¹⁶² In sum, in the 2010s-2020s, the United States is an aspiring post-racial society (i.e., operating as though racial discrimination and prejudice no longer exist), using color-evasive frameworks to resolve racially-bounded problems.¹⁶³

2. CRT: Reproduction of the Racial Caste via Courts

Scholars of Critical Race Theory (CRT) trace the origin of the movement to the 1970s and 1980s.¹⁶⁴ These scholars branched off from prior movements in the legal academy that critiqued the law and society: namely, Critical Legal Studies (CLS) and, in the early twentieth century, Legal Realism.¹⁶⁵ CRT scholars and the previously established movements had one goal in common: to contest the prevalent dominant paradigm in the legal field, legal formalism.¹⁶⁶ However, CRT distinguished itself from these prior movements, which were critical in nature but largely adopted a race-evasive frame to critique the relationship between law and society.¹⁶⁷ For example, CLS had adopted a liberal approach that remained less critical of covert racism and racial dynamics post-civil rights movement.¹⁶⁸ CRT came at a time where the legal field needed new discursive frames to understand the “aftershocks of white supremacy’s formal collapse” post-civil rights era.¹⁶⁹ Kimberlé Crenshaw, one of the founding scholars of CRT, described the emergence of CRT as follows:

CRT came to life in the cracks between alignment and misalignment with liberals and the civil rights establishment, as reflected in the struggle over faculty hiring, and also in relation to the progressive left in legal education—Critical Legal Studies. Early Race Crits were thus situated in a dialectical loop, attracted to and repelled by certain elements of civil rights discourses, and at the same time, attracted to and repelled by certain discursive elements within CLS. CRT grew as a repertoire of discursive moves and projects that marked specific engagements over race in both liberal and radical spaces.¹⁷⁰

The body of work that emerged from CRT has continued to evolve and draw specific attention to the dialectical relationship between race and the law.¹⁷¹ Scholars of race and law generally and CRT specifically have advanced the field’s understanding about how race interacts with the law across multiple areas of the law and legal processes.¹⁷² For instance, scholars have identified that racial bias rears its head in legal processes, such as in jury selection,¹⁷³ plea bargaining,¹⁷⁴ and as jurors and judges internalize and recall relevant information in a case.¹⁷⁵

CRT scholars have also advanced critiques of legal doctrine and the courts’ reproduction of the racial caste via their rulings.¹⁷⁶ They have identified courts’ color-evasive approaches in doctrinal interpretations, alongside the pervasive adoption of legal formalism as a legal frame, and have outlined the implications and problematic nature of such color-evasive approaches.¹⁷⁷ For example, Neil Gotanda in A Critique of “Our Constitution is Color-Blind ,” argued that the use of formalism in courts’ application of the strict scrutiny standard perpetuates and legitimizes racist social structures.¹⁷⁸ Similarly, Alan D. Freeman argued that the Supreme Court’s doctrinal approach to antidiscrimination law legitimized racial discrimination.¹⁷⁹ According to Freeman, the Court’s approach to anti-discrimination law favored the perpetrator’s perspective, which focused the narrative on causation and individual fault, and away from the victims’ perspective that racial discrimination was embedded in the fabric of society.¹⁸⁰ By focusing on the individual discriminatory actions of the perpetrators, the Court decoupled the racialized social context from victim’s claims of racial discrimination, making it harder for victims of racial discrimination to prove their claims and leaving most entrenched racism in society unaddressed.¹⁸¹

Building on decades of CRT scholarship, I contribute racialized judicial decision-making as a theoretical frame to this burgeoning work. Crenshaw conceptualized CRT as:

[N]ot so much as an intellectual unit filled with natural stuff— theories, themes, practices, and the like—but one that is dynamically constituted by a series of contestations and convergences pertaining to the ways that racial power is understood and articulated in the post-civil rights era . . . . I want to suggest that shifting the frame of CRT toward a dynamic rather than static reference would be a productive means by which we can link CRT’s past to the contemporary moment.¹⁸²

I draw particular attention to the dynamic nature of race and judicial decision-making as a system. I draw on and extend the prior scholarship by taking the focus beyond individual biases and ideologies, arguing that judicial decision-making is constitutive of race. Our social construction of race encodes racial hierarchies that judges transpose into their decisions, and which thereby reproduce lasting racial structures in society.

III. Theory Of Racialized Judicial Decision-Making

A. Ubiquitous Schematic Thinking in Racialization

Race and ethnicity theorists conceptualize the construct of race not as a thing or individual marker or characteristic but as “a relationship between persons mediated through things.”¹⁸³ It is in this relationship that “race is constructed relationally via the distribution of social, psychological, and material resources. Racialization is the extension of racial meaning to resources, cultural objects, emotions, bodies . . . previously seen as nonracial.”¹⁸⁴ These racial meanings attached to resources distributed differently across races and ethnicities create lasting systemic structures that organize society culturally and, in turn, create a durable racial hierarchy.¹⁸⁵

Scholars and theorists of race and ethnicity largely agree that in this mediated and negotiated relationship of racialization, cognitive schemas play a central role in creating the racial hierarchy.¹⁸⁶ These scholars posit that schemas—simplified mental representations of perceived reality—aid individuals in interpreting and acting in social interactions.¹⁸⁷ In this sense, mental maps, or cognitive schemas, are navigational tools allowing individuals to simplify, assess, and act in complex social situations that often involve multiple stakeholders and interests.¹⁸⁸

However, these schemas operate mainly in the sub-conscious and “must be activated by some stimulus or cue.”¹⁸⁹ Because these are simplified mental maps operating largely in the sub-conscious, though useful to navigate social situations, they in/advertently center some elements (i.e., biases, norms, ideas, etc.) at the expense of others, leading to inevitable marginalization.¹⁹⁰ Some scholars have described schemas as “taken-forgranted” mental representations that are powerful enough to legitimate inequality when the mental representations are connected to resources allocated differentially across ethnoracial groups.¹⁹¹

By incorporating accepted facts, biases, and sociocultural racialized norms into the decision-making process guided by the schemas, individuals can reinforce or challenge the very same, and the choice to reinforce or challenge can shift the dominant framing and discourse about current and future similar issues.¹⁹² Scholars such as Jung argue that schemas “as a theoretical linchpin . . . can explain the ubiquity of racial structures.”¹⁹³ Thus, though individual in nature, these schemas are aggregately activated through context and resource/power allocation such that they produce an entire society that is racialized, with resources and power differentially allocated across ethnoracial groups.¹⁹⁴

Theoretical and empirical scholarship has explored the role of individuals, state actors, and intermediary actors in reproducing the racial state.¹⁹⁵ Earlier scholarship primarily framed racism as grounded in personal psychology and individual animus.¹⁹⁶ Bonilla-Silva contested and expanded on this framing, arguing “that racism arises as a set of historically- and contextually-specific ideological justifications for a society’s racialized social system.”¹⁹⁷ In this body of literature, the focus was largely on the state, with little attention given to non-state organizations that operate underneath the state.¹⁹⁸ Ray merged organizational theory and theories of race and ethnicity in his racialized organizations theory.¹⁹⁹ Still, while the state has received more attention in the literature, the state actors whose role remains largely undertheorized are judges and their decision-making process.

B. Racialized Judicial Decision-Making

Race as a construct encodes a hierarchical structure, and in a society in which white supremacy pervades, whiteness reigns at the top of a hierarchy and Blackness at the bottom.²⁰⁰ The construct of race in a racialized society bounds schematic thinking, meaning race qua mental maps encodes racial hierarchies that aid people in making sense of their perceived realities and, most important to our discussion, in making decisions.²⁰¹ While largely living in the subconscious, the racial hierarchy in schematic thinking becomes tangible in social contexts when connected to resources allocated differentially across ethnoracial groups.²⁰² Scholars have conceptualized “resources” broadly to include the tangible (e.g., money and physical property) and intangible (e.g., power, liberty, agency, autonomy, and psychoemotional well-being).²⁰³ The differential allocation evinces racial subordination present and encoded within the construct of race-bound schematic thinking.²⁰⁴

In the racialized U.S. society, evidence of the transposition of racialized schematic thinking onto differentially allocated resources is abundant in social actors’ decision-making.²⁰⁵ For instance, in Anglo-colonial times, liberty was policed differently across ethnoracial groups.²⁰⁶ Black and Indigenous communities had their liberty curtailed via laws instituting enslavement or removal, while white men exempted themselves from laws that would curtail their liberty and expanded their dominance through ownership and wealth accumulation.²⁰⁷ Such schemas created dynamics that expanded white people’s power over people of color and extracted labor from these communities to build generational wealth.²⁰⁸ In other words, a (predominantly white) decision-making body connected racialized schemas to differential allocation of liberty, power, and wealth, or lack thereof.

Ray offers a contemporary example of racialized schemas connected to differentially allocated resources in the restriction of time for low-wage employees, compared to the flexibility of time and schedules people at the top of the organizational hierarchy enjoy.²⁰⁹ The differences are often attributed to corporate demands via work schedules and organizational hierarchies, a color-evasive framing that obfuscates the role of systemic policies and practices that overburden and impede organizational advancement for predominantly nonwhite employees.²¹⁰ People of color are overrepresented in the low-wage tier, while higher status positions remain possessed largely by white people.²¹¹ Race thus encodes racial subordination that manifests itself via the lack of agency and access to resources and power for those who are subordinated in the organizational hierarchy.²¹²

The racial hierarchy and racialized schematic thinking are harmless in the minds of judicial actors, unless and until they are activated in the judicial decision-making process. That is, until they are connected to the power the courts as social institutions wield.²¹³ Of course, schematic thinking can be harmful in social contexts beyond the court, such as when Justice Alito shares his cognitive schemes with attendees at the Federalist Society’s annual meetings, influencing public policy discourse.²¹⁴ In the court context, judicial decision-making reproduces the racial hierarchy when judges intentionally or inadvertently transpose the racial mental schemes onto judicial decision-making outcomes.²¹⁵ To this end, legal burdens— burdens²¹⁶ individuals carry in the legal process—serve as a useful concept to further understand the transposition of racialized schemas in judicial decision-making and the consequent racially stratified outcomes. In racially stratified judicial decision-making, ethnoracially minoritized people carry greater legal burdens such that they enjoy less resources (e.g., power and agency) in the process.

A textbook example of the legal burdens nonwhite litigants disproportionately carry in the judicial process can be found in the ways in which racialized schemas have transformed racial discrimination cases in the education context. As discussed above, Brown arose within the context of external social pressures, as the United States sought to position itself as the land of equality for all, regardless of race or ethnicity.²¹⁷ Derek Bell argued that a predominantly white majority had an interest in advancing racial progress to demonstrate the United States stood for equality.²¹⁸ Black people, on the other hand, had an interest in racial progress to improve their quality of life and gain access to resources and power that were previously unjustly denied to them.²¹⁹ The convergence of interests, argued Bell, was largely responsible for the outcome of the case.²²⁰ But even if interest convergence was at the heart of the case outcome, racial progress and racial equality were at the heart of the judicial discussion.²²¹ That is, the Court singled out racial equality in its rationale to justify the outcome.²²²

Judicial decision-making, however, has incrementally changed over seventy years since Brown —racial equality and progress is no longer part of the judicial conversation in the same way it was in Brown , and historically oppressed litigants of color carry greater legal burdens in proving their racial discrimination cases.²²³ This shift in burden is a result of concerted decisions judges have made over time.²²⁴ Over the decades, students of color continued to advocate for racial progress before the courts, and while the courts continued to entertain these arguments, they also gradually shaped and narrowed what they valued to the detriment of communities of color.²²⁵ Regents v. Bakke shifted the conversation regarding the purpose of affirmative action policies in higher education from racial equality and progress to diversity broadly construed.²²⁶ This judicial shift largely severed the ties between racial equality for historically oppressed people and situations that the Court considered as meriting legal intervention.²²⁷ Litigants claiming racial discrimination would have to advance not an argument rooted in racial equality and progress for those who were historically excluded from higher education, but an argument that centered diversity in higher education because it benefitted all.²²⁸ Notably, the student population in higher education remains predominantly white²²⁹ and most institutions remain predominantly white spaces.²³⁰ Thus, scholars have argued the Court’s shift decentered students of color and emphasized the benefit that students of color brought to (predominantly white) student bodies and institutions.²³¹

This gradual shift was complemented by another shift via judicial decision-making. Two legal doctrines together have heightened the burden on predominantly people of color to prove their legal cases: (1) the adoption of the three standards of scrutiny (i.e., strict, intermediate, and rational)²³² and (2) the requirement that racial discrimination via Equal Protection Clause doctrine be quintessentially intentional.²³³ Washington v. Davis found that while racial disparate impact is not irrelevant in determining whether government action is racially discriminatory under the federal Equal Protection Clause, it does not by itself trigger strict scrutiny.²³⁴ Proving racial discrimination thus requires demonstrating discriminatory intent.²³⁵

During the era of Davis , public discourse had in great part shifted to one that bemoaned explicit racism and lauded racial progress.²³⁶ This sociopolitical context matters to understand the ways in which judicial decision-making allocated legal burdens differentially across ethnoracial groups claiming racial discrimination. The collapse of formal white supremacy meant that few individuals at the time would admit they adopted policies or acted to intentionally discriminate against people of color.²³⁷ Therefore, it became nearly impossible for litigants of color arguing racial discrimination to show discriminatory intent as the court required²³⁸ because during this era, explicit intent to discriminate was socially admonished and hard to find.²³⁹

During this same period, universities had increasingly begun to adopt policies that would use affirmative action to remediate past exclusion and oppression of students of color.²⁴⁰ Thus, in contrast to individuals and institutions that no longer claimed to use race intentionally, colleges and universities were using race intentionally to remove policies and practices that had long discriminated against applicants of color.²⁴¹

Against this contextual backdrop, the courts’ set of doctrinal decisions piled burden after burden on students of color bringing racial discrimination claims.²⁴² Proving racial discrimination required that students of color show discriminatory intent, which was nearly impossible. This is because historical discrimination (which students of color could point to) was no longer sufficient under the Court’s color-evasive legal standards, while the intentional use of race by educational institutions (which students of color could point to) was to advance racial equity for historically oppressed students, not to discriminate against them.²⁴³ This left historically oppressed students of color with few avenues to challenge racial discrimination, given that most racism in today’s society occurs through covert mechanisms.²⁴⁴ On the other hand, the focus on intent and insistence on diversity as the goal created a new venue for white litigants to claim racial discrimination.²⁴⁵ Essentially, predominantly white litigants who did not have a history of racial oppression or exclusion in education could now challenge institutional policies that used race and ethnicity intentionally, arguing that these policies constituted “reverse” racial discrimination.²⁴⁶ Their arguments no longer had to be rooted in racial equality and progress (as Brown was).²⁴⁷ Predominantly white litigants could argue that they brought some type of diversity and were being denied entry because others, who they insinuated were less deserving, took their spots through affirmative action policies.²⁴⁸ The legal burdens carried predominantly by litigants of color seeking racial progress were greater,²⁴⁹ and (predominantly) white litigants had a new avenue to undo the racial progress the educational policies had advanced.²⁵⁰ The legal burdens were distributed differentially across ethnoracial groups depending on how adjacent they were to whiteness; white litigants have an easier time challenging admissions policies, because it was easier for them to prove the intent prong, given that postsecondary institutions intentionally created policies to increase the number of students of color admitted. In other words, after the Davis era, it is not only harder to win a racial discrimination claim, it is harder for people of color who have been historically excluded and are least adjacent to whiteness to win a racial discrimination case. Parallel legal burdens appear in the employment context regarding racial anti-discrimination claims.²⁵¹

The differentially allocated legal burdens are present beyond racial anti-discrimination legal doctrine. Consider judicial decision-making regarding criminalized behavior. It is widely empirically proven that people of color are over-criminalized by the police force, prosecutors, and the criminal law courts.²⁵² During times of slavery and Jim Crow laws, criminalization of certain actions specifically targeted people of color.²⁵³ The racial schemas were explicitly connected to the codification of criminalized behavior.²⁵⁴ Actions Black and Brown people took were outright criminalized, even though the same actions committed by white people were not sanctioned.²⁵⁵ In fact, the raison d’etre for some legally sanctioned behavior was people’s ethnoracial identity.²⁵⁶ Laws and policies that explicitly discriminated against Black and Brown people by limiting their social mobility and relegating them to second class citizenship were the status quo, and the courts reinforced this racial hierarchy.²⁵⁷ For instance, Black and Brown people were legally sanctioned and prevented from sitting in spaces reserved for white people.²⁵⁸ The Supreme Court upheld one such law that separated the races in Plessy v. Ferguson ,²⁵⁹ and admonished Black people for seeking access to quality facilities.²⁶⁰ The Court, in employing a false equivalence between situations (i.e., the practical implications of racial segregation were equal for Black and white people), found that there was nothing specific targeting Black people; the law on its face separated everyone equally.²⁶¹ The Court did not acknowledge the social inequality and power differential that makes segregation unequal across races.²⁶² Black people not only accessed separate facilities and opportunities, they accessed separate sub-par facilities and opportunities.²⁶³ The social racial hierarchy encoded in racialized schematic thinking thus was connected to the separate but equal doctrine established by judicial decision-making.²⁶⁴ Black people carried the burden to prove they were deserving of access to certain resources.²⁶⁵ They had reason to challenge these laws, to gain access to quality facilities and to resources.²⁶⁶ White people enjoyed these facilities and resources, and most had no reason to challenge the exclusion of Black people from these resources.²⁶⁷ The only ones carrying a burden to access better resources via legal mandates were Black people.²⁶⁸

In the twenty-first century, people of color predominantly carry a greater legal burden in the judicial process to retain as much of their liberty as possible.²⁶⁹ Judicial decisions have collectively placed greater burdens on people of color that curtail their liberty in criminal cases.²⁷⁰ Though judges play a more limited role in the process,²⁷¹ they issue sentences in the cases and shape legal doctrine.²⁷² Judicial decision-making in these two discretionary areas have created substantial burdens for defendants of color to overcome in avoiding and reducing detention time.²⁷³

Research has found that prior to coming before judges for sentencing, defendants have engaged with multiple criminal legal system stakeholders, and that these interactions are racialized.²⁷⁴ While behavior that is criminalized no longer explicitly singles out Black and Brown people who are engaging in certain behavior (e.g., boarding a train designated for white people), Black and Brown people are more likely to be overcriminalized.²⁷⁵ Majority Black and Brown neighborhoods are over-policed and experience greater arrests and police brutality.²⁷⁶ This is not a result of more violent behavior on behalf of Black and Brown people.²⁷⁷ Research shows that white people engaging in similar behavior see less arrests for the same behavior²⁷⁸ and experience less police brutality.²⁷⁹ Moreover, police have been found to carry racial biases against people of color that impact their interactions with them.²⁸⁰ Further, prosecutors engage with defendants, deciding whether to drop or prosecute a case.²⁸¹ In these interactions, they are more likely to seek harsher plea agreements and graver charges against people of color, and are less likely to drop charges.²⁸² Thus, when defendants of color come before the court, their experience of the criminal legal process has already been overtly negative. Judges are seeing greater numbers of people of color before them with higher charges.²⁸³ This phenomenon reinforces racial social norms for all parties involved, including judges.²⁸⁴

Judges hold some discretion in the sentencing, however, and this is where their decision-making adds an additional burden in the process for defendants of color.²⁸⁵ For instance, the sentencing guidelines guide judges as they decide the sentences.²⁸⁶ Though judges consider multiple factors in deciding the sentences, research has found that across sentences and after controlling for numerous factors, people of color, specifically Black people, receive substantially longer sentences.²⁸⁷ Moreover, research has found that 56% of the Black-white sentencing disparity is attributed to judges choosing to depart from the sentencing guidelines.²⁸⁸ These judicial decisions lead to overrepresentation of Black and Brown people in prison:²⁸⁹ even though Black people make up about 13.6% of the U.S. population,²⁹⁰ they make up nearly 40% of the prison population.²⁹¹ This overrepresentation, in turn, reinforces the social construction of race and the association of certain races with crime and dangerousness.²⁹²

In addition, judicial decisions have shaped criminal law doctrine to allow for numerous exceptions to legal protections and give state actors (e.g., police) greater discretion in criminalizing individuals.²⁹³ Thus, arrestees see their liberty and autonomy, both intangible resources, substantially curtailed and limited.²⁹⁴ But the burden to keep as much liberty and autonomy as possible for oneself is not allocated equally across all defendants. Because of the decisions made prior to the defendant coming before the judge, Black and Brown defendants carry a greater burden in trying to secure as much of their liberty and autonomy as possible in an inherently racialized process.

Racialized judicial decision-making in the free speech arena is another illustration of the allocation of legal burdens disproportionately placed on people of color.²⁹⁵ Judges have come to construe free speech legal doctrine as largely permissive.²⁹⁶ The bounds of free speech law mean that most speech, with few exceptions, is allowed.²⁹⁷ This includes dehumanizing speech and speech that marginalizes historically oppressed people.²⁹⁸ The courts have equated offensive speech with unpopular speech and have argued that in a marketplace of ideas, the best ideas will rise to the top.²⁹⁹ Empirically, this does not bear out.³⁰⁰ Researchers have found that social positionality will help ideas rise to the top and marginal social status may sink otherwise good ideas.³⁰¹ In a racialized society, speech and exchange of ideas is a social process in which the speech or expressive action carry value-laden connotations.³⁰² Expressive communication thus can reinforce social norms—including racialized ones—and marginalize or challenge dominant norms, depending on the individual expressing themselves.³⁰³ In this sense, the marketplace of ideas is not a level playing field: harmful ideas can rise to the top, and language can be harmful when directed at already marginalized³⁰⁴ groups with lower social positionality.³⁰⁵ Research has documented the psychoemotional harm dehumanizing speech can have on people of color.³⁰⁶

Yet people of color, particularly those least adjacent to whiteness, carry the greater legal burden in the judicial process, seeking legal protection to avoid being subjected to such tangibly harmful expression.³⁰⁷ Challenges to these suits from white litigants have sought to establish that harmful speech and expression is protected, and the courts have acquiesced³⁰⁸ by adopting a formal definition of harm, such that invisible harm is delegitimized and therefore unworthy of legal intervention.³⁰⁹ People of color, therefore, do not have much legal recourse to challenge harm, except in extreme instances (e.g., violence is involved).³¹⁰ Thus, the legal doctrine in this space upholds a marketplace of ideas that does not benefit marginalized people of color, and ignores that, at the end of the day, judicial decisionmaking is a social process and can reflect a different set of norms.³¹¹ Judges are in/advertently co-creators of these social norms.³¹² Similar legal burdens disproportionately allocated on marginalized people of color are present in other areas of the law, such as in disability law, property law, lenity law, constitutional law, and Title VII law, to name a few.

In short, race as a construct encodes a racial hierarchy into which we are all socialized,³¹³ and the construct bounds schematic thinking.³¹⁴ Through socialization, individuals in/advertently learn to internalize and attach different racial meanings to things and relationships.³¹⁵ Via judicial decision-making, judges transpose this racialized schematic thinking into their decisions within areas of law (e.g., racial discrimination). Within an area of law, a set of judicial decisions work in conjunction to allocate legal burdens disproportionately to marginalized people of color (e.g., the rulings that across time gradually changed affirmative action law, making it harder for historically marginalized people of color to allege racial discrimination in this context).³¹⁶ But as demonstrated above, racialized judicial decision-making goes beyond a particular area of law (e.g., racial discrimination, free speech, and criminal law). Thus, this phenomenon is even more striking when these various legal burdens within areas of law are aggregated across areas of law. Because racialized judicial decision-making is a systemic issue that pervades across areas of law, people who carry the greatest legal burdens are disadvantaged not only in one area of law, but in the legal system. Judicial decision-making as a racialized system creates and maintains institutional racial structures in society and is constituted of race qua mental maps.

C. The How of Racialized Judicial Decision-Making

In the preceding Section, I introduced the idea of racialized judicial decision-making as a system constitutive of the construct of race, a system that in being racialized assigns legal burdens disproportionately, such that marginalized people of color have less access to resources (e.g., liberty and autonomy). I explained that legal burdens are assigned differentially within and across different areas of law as judges transpose racially-bounded schematic thinking into their judicial decision-making. Here, I introduce three mechanisms that arise in racialized judicial decision-making to expand on how the legal burdens are assigned differentially in the judicial decisionmaking process. I build and extend on prior concepts to discuss the racialized processes involved in judicial decision-making.

1. Whiteness Serves as Capital that Increases Epistemic Advantage

Whose stories and ways of knowing are to be believed and privileged in the courts’ processes? Courts are charged with the task of fact finding, a process in which they must hear, for example, litigants, expert witnesses, and attorneys and decide which facts are true and most important (i.e., relevant) to resolve the dispute before them.³¹⁷ The process culminates in decisions that are binding on the parties before the courts,³¹⁸ and that many times also inform the policy and practice beyond the parties in a given dispute.³¹⁹ I argue that in racialized judicial decision-making, whiteness serves as capital that increases a particular type of advantage in the process: an epistemic one.

My argument borrows and builds on the concept of capital. Bourdieu introduced the concept of cultural capital, arguing that the dominant social class cultivated certain skills, knowledge, and dispositions that, in turn, granted the dominant social class institutional advantages.³²⁰ According to Bourdieu, social institutions adopt certain standards for what they consider success, and though the standards may appear facially neutral, these standards align with the cultivated skills, knowledge, and dispositions of the dominant social class.³²¹ Cultural capital associated with the dominant social class becomes ingrained as the standard and acts as a base line such that it becomes the measuring stick of success and talent, and hence is rewarded by institutions and organizations.³²² But capital as a social construct varies by context, and the value and currency that particular capital carries depends on the market within which it arises.³²³ For instance, in Racial Capitalism , Nancy Leong argues that nonwhiteness serves as capital from which predominantly white institutions and organizations derive value,³²⁴ such as to establish that they are not racist³²⁵ or to grow their literal monetary value by improving their social standing when they position themselves as egalitarian.³²⁶ Similarly, Ashleigh Cartwright in A Theory of Racialized Cultural Capital argued that cultural capital not only favors the highest social classes but intersects with race, favoring the dominant white middle/high class in accessing institutional advantages.³²⁷

I expand on these ideas by conceptualizing whiteness as a form of capital that increases epistemological advantages in a particular market: the courts. As discussed above, whiteness as a social construct has morphed over time and has retained the ability to define itself and exclude who is not to be considered white.³²⁸ This is how whiteness continues to maintain racial domination: it adapts and expands/contracts its definition to ensure the power rests within the same racial group, by including a sufficiently large critical mass who will be persuaded to maintain racial domination, given the social benefits whiteness confers to those adjacent to it.³²⁹ Its domination, however, is dependent on the dispositions and characteristics that are associated with whiteness itself.³³⁰ After all, it is not sufficient to declare oneself white to benefit from the social advantages that whiteness conveys—some Black people could hardly wake up one day and decide they will live their day as a white person.³³¹ This is because they lack certain dispositions or characteristics that society has deemed to be and would accept as being associated with whiteness.³³² In the racialized U.S. society, characteristics associated with whiteness go beyond skin color, to include, for example, notions of intelligence,³³³ language and accents,³³⁴ clothing choices, music, and residential choices. In the court setting, these dispositions and characteristics associated with whiteness act as currency that confer those adjacent to whiteness epistemic advantages.³³⁵

Those adjacent to whiteness are more likely to enjoy certain automatic assumptions that are deeply ingrained in racialized schematic thinking, including being thought of as trustworthy, truthful, sharing accurate stories,³³⁶ knowing how to make sense of one’s lived experiences,³³⁷ and deserving of respect for one’s views and perspectives of the world.³³⁸ In other words, they are more likely to embody epistemological authority in the process.³³⁹ Conversely, those less adjacent to whiteness are less likely to automatically be granted the same epistemological advantages in the judicial decision-making process.³⁴⁰

These epistemological (dis)advantages are evident in how judges frame parties and stories before them. Through their framing and narratives, judges reinforce value-laden judgements that have been historically attached to different ethnoracial categories.³⁴¹ They also use language and rhetoric that humanize parties, such as calling a party by their name, to garner sympathy for the party’s concerns.³⁴² The frames and narratives judges employ humanize certain ethnoracial groups, while abstracting and ultimately dehumanizing others.³⁴³ For instance, in Plessy v. Ferguson , the Supreme Court abstracted Plessy from society’s racialized context, and by ignoring the racialized reality, the Court was able to conclude that discrimination was only in Plessy’s head; racial segregation was not harmful.³⁴⁴ More recently, the Eleventh Circuit refused to recognize a Black woman’s claim that an employer’s hair grooming policy prohibiting dreadlocks discriminated against Black people.³⁴⁵ In discussing the context and denying a legal remedy, the Court framed the contemporary racialized social context surrounding dreadlocks as irrelevant, noting that whatever the contemporary definition of race may be, “our possible current reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago.”³⁴⁶ Other judges have opted to draw on pernicious dehumanizing racial tropes and stereotypes, such as in a 2016 case where a judge sentenced a persistent felony offender to 15 years to life in prison, saying:

I feel sorry for you. Because I know that if we were to look in your mind we would find that your brain, your frontal lobes, your decision-making processes are probably retarded in growth. Because we have learned through medicine, through science, that physical mental abuse especially at a young age will stunt growth of the frontal lobes, which prevents people from making decisions. [Using a paternalistic approach, the Court concluded, the sentence] is in a way to make you safe from hurting yourself or others because I appreciate the fact that your brain is not developed through no fault of your own.³⁴⁷

In contrast, judges humanize people adjacent to whiteness by framing their stories as legitimate and their concerns as deserving of an audience (i.e., deserving to be heard).³⁴⁸ An example that illustrates both frames are the recent cases on affirmative action in K-12 education. In Parents Involved v. Seattle , the Supreme Court frames housing segregation and covert racism, an issue raised by people of color, as irrelevant to the legal issues before the Court.³⁴⁹ Instead, the Court empathizes with the white litigants and their request to undo district assignment policies designed to counter racial segregation.³⁵⁰ Whiteness is humanized such that white victimhood immediately causes concern and creates a need for restitution and protection of what is at stake for those most adjacent to whiteness.³⁵¹

Simultaneously, judges use framing and rhetorical devices to paint the stories of marginalized nonwhite people as illogical or unrealistic, as seeking too much, or seeking special remedies that are not appropriate or reasonable,³⁵² and language that presents the parties as abstract actors (e.g., using “defendant” instead of using the party’s name).³⁵³ Other rhetorical choices may present marginalized people of color’s stories as deficient, not fully telling the true story, or presenting irrelevant information not germane to the issue before the courts.³⁵⁴ After all, it is the courts that decide what is relevant to a case. Together, these rhetorical choices marginalize the epistemologies of people of color, have the effect of diminishing the humanity of marginalized people of color in the decision-making process, and consequently garner less sympathy for these parties’ views and their legal requests.³⁵⁵

Historically, the law singled out nonwhite people and explicitly set the standard that the knowledge they offered was not valid enough to carry weight in judicial processes.³⁵⁶ Judges did not include nonwhite people in the decision-making process, establishing specific rules that barred nonwhite people from participating.³⁵⁷ For instance, nonwhite people were excluded from jury selection.³⁵⁸ Similarly, testifying in court cases as expert witnesses, or otherwise, was not allowed for people who were considered nonwhite.³⁵⁹ On the other hand, white people were allowed to participate in the process, have their stories heard, and develop trust that their views would be adopted in the dispute resolution.³⁶⁰

But even as people of color were gradually allowed to partake in the judicial process, the epistemologies of nonwhite people have failed to become the standard adopted by courts. More often than not, the courts have continued to give them little value and marginalize them.³⁶¹ For example, Plessy was given the opportunity to share his story before the Supreme Court, but the story was given less credence and value in the case’s resolve.³⁶² In Plessy , the Court claimed that if separate facilities caused individuals to feel inferior, the feeling of inferiority was attributed to Plessy (and other people of color) choosing to construct racial segregation as such.³⁶³ In other words, according to the Court, Plessy’s claim that racially separate facilities were unequal was not a claim grounded in reality, at least not grounded in a reality the Court was willing to recognize. Similarly, numerous cases across history demonstrate that Black men could and would be convicted of crimes when white people accused them of the crime.³⁶⁴ When nonwhite people contested the facts to argue they were not guilty or liable, their words and knowledge of the events were not believed and carried less weight in the process and case resolution.³⁶⁵ Those who benefited from whiteness enjoyed the benefit of the doubt in a racialized judicial decision-making system.³⁶⁶

After explicit racially exclusionary rules were eradicated, white supremacy adapted.³⁶⁷ Rules of exclusion in the courts no longer needed to be present for the marginalization of nonwhite epistemologies to occur in judicial decision-making.³⁶⁸ Historically marginalized people of color and their knowledge continue to be disadvantaged in the process post- Plessy .³⁶⁹ The dominant majoritarian narratives that favor white episteme govern the processes through the continual humanization of parties adjacent to whiteness, and simultaneous dehumanization of marginalized people of color.³⁷⁰

Race-related cases provide a fertile illustration of this phenomenon. In case after case, the courts have continued to adopt the white-centering episteme in their decision-making, without regard to the harm in marginalizing the episteme of nonwhite communities.³⁷¹ Although marginalized people of color succeeded in their advocacy to undo some of the laws that historically oppressed them, their knowledge and their ways of knowing have been given less credit in judicial decision-making processes in racerelated cases.³⁷² This is evident in judicial framing across race-related cases.

For instance, in Race, Rhetoric, and Judicial Opinions , Brad Desnoyer and Anne Alexander found that courts adopted predominantly majoritarian frames and narratives that centered white episteme in three race discrimination cases in the twentieth century:³⁷³ States ex rel. Gaines v. Canada ,³⁷⁴ Kraemer v. Shelley ,³⁷⁵ and Liddell v. Board of Education .³⁷⁶ Specifically, the courts in the cases used “black abstraction,” “white innocence,”³⁷⁷ and “imposition”³⁷⁸ as rhetorical devices to maintain the racialized status quo that overwhelmingly benefitted white people and their perspectives.³⁷⁹ Through Black abstraction, the courts presented Black people as secondary actors within majoritarian narratives.³⁸⁰ This ahistoric approach³⁸¹ effectively obscured the humanity of Black people before the courts.³⁸² White innocence allowed the court to avoid placing blame or responsibility to intervene when racial injustice arose.³⁸³ When racism is not seen as a collective social problem and there seems to be no one to blame for social inequality, no actor is responsible to ameliorate racial injustice.³⁸⁴ Finally, through the rhetorical tool of imposition (i.e., phrases used to refer to someone who is imposing themselves and overstepping),³⁸⁵ the courts framed claims of racial injustice, typically advanced by litigants of color, as outrageous, unbelievable, and consequently not deserving of legal remedies.³⁸⁶ These rhetorical tools collectively marginalized the epistemologies of litigants of color.

Federal equal protection jurisprudence has similarly devalued epistemologies of people of color in the twenty-first century.³⁸⁷ Courts, in these cases, frame the stories that litigants of color advance regarding racial discrimination as outrageous, unlikely to be true.³⁸⁸ This framing is particularly common after explicit racism ceased to be the social norm, because parties in these cases can rarely point to racial discriminatory intent.³⁸⁹ The majoritarian narratives that uphold notions of white subordination in the public discourse still underlie the discourse in the courts’ opinions, even when the narratives the courts adopt are framed as “racially-neutral.”³⁹⁰ These discursive frames allow courts to find no discrimination when, for example, students who are predominantly of color argue that school policies continue to perpetuate racial segregation and racism.³⁹¹

The value of whiteness that affords people epistemic advantages goes beyond legal doctrine to other judicial decisions, such as sentencing. In framing white people as inherently human and deserving of sympathy, judges are able to justify lower sentencing for these parties.³⁹² For instance, in a case against defendant Brock Turner, a white male student athlete, a jury found him guilty of sexually assaulting a young woman, Chanel Miller, who was intoxicated and unconscious at the time of the assault.³⁹³ Importantly, in this case, the defendant could not refute the sexual assault allegations because others had caught him committing the assault.³⁹⁴ In sentencing, Judge Aaron Persky offered language of sympathy, rejecting the prosecutor’s request for a lengthy sentence (six years in prison) and instead sentencing Turner to sixth months in jail, a light sentence for the type of crime.³⁹⁵ Judge Persky in sentencing Turner rationalized that “a prison sentence would have a severe impact on him. And that may be true in any case. I think it’s probably more true with a youthful offender sentenced to state prison at a – at a young age.”³⁹⁶ Persky received backlash for this comment, and voters subsequently recalled him from his position as a judge.³⁹⁷ But more germane to our discussion, his judicial decision-making centered Turner’s views, framing the defendant as a human with pain and who would suffer if mandated to serve a prison sentence.³⁹⁸ The language suggested that Turner was not deserving of harsh punishment and deserved sympathy.³⁹⁹ The framing the court used suggested that the audience should see the defendant as a human who had simply committed a mistake, and hence deserved a light consequence.⁴⁰⁰

Similarly, so-called “affluenza kid” Ethan Couch, also a white male, came into the limelight when the court found him guilty of drunk driving, killing four people.⁴⁰¹ Though Judge Jean Boyd could have sentenced him to up to 20 years in prison, the judge sentenced Couch to ten years of probation and treatment at a long-term treatment facility.⁴⁰² The judge did not provide rationale for their decision, but the decision came after the defense argued that the judge should not sentence Couch to prison, because he suffered from “affluenza:” he was not accustomed to experiencing consequences for his behavior.⁴⁰³ This type of sentencing would rarely be the outcome for marginalized defendants of color, even when they are young—in fact, defendants of color are criminalized at a young age.⁴⁰⁴ Through its decision, the court sent the message that Couch deserved sympathy and that rehabilitation was possible,⁴⁰⁵ a courtesy rarely extended to defendants of color in the judicial decision-making process.⁴⁰⁶

Similar cases across jurisdictions illuminate the pervasiveness of the phenomenon. In 2022, the judge sentencing Kim Potter (a white woman)—a police officer who killed Daunte Wright, a Black man, when she allegedly confused her taser with a gun—garnered criticism when she asked for sympathy for Potter (using rhetoric to emphasize Potter’s humanity) and appeared to cry as the she sentenced Potter to a severely reduced sentence uncommon for the crime she had committed.⁴⁰⁷

In sum, people adjacent to whiteness, as presented via dispositions and characteristics associated with whiteness, are more likely to enjoy epistemic advantages in the judicial decision-making process.⁴⁰⁸ These epistemic advantages position people who benefit from whiteness as reliable sources of knowledge, with their knowledge seen as legitimate and carrying weight in the process (e.g., it is legally relevant).⁴⁰⁹ The epistemologies of people of color are marginalized in the process, by being framed as unreliable and as presenting outrageous stories or seeking special privileges.⁴¹⁰ Through the frames and narratives, judges largely humanize those adjacent to whiteness while simultaneously marginalizing those least adjacent to it, those who are racialized as being of color.⁴¹¹

2. Color-Evasive Approaches as Effective Tools to Justify Racially Disparate Outcomes

In racialized judicial decision-making, color-evasive approaches act as effective tools to justify racially disparate outcomes.⁴¹² The approaches are particularly effective because they sever the ties between the racialized dynamics embedded in the cases from the decisions the judges make in the cases: since race is not involved or connected explicitly to the judges’ decisions, then, according to this logic, the decisions must not be racialized.⁴¹³ Dominant color-evasive approaches employ ahistoricism⁴¹⁴ as well as formal and acontextual concepts of race.⁴¹⁵

In adopting an ahistorical approach, judges often relegate how history has informed any issue before them to interesting context at best and irrelevant discussion at worst.⁴¹⁶ For instance, in ruling on the legality of raceconscious admissions policies in higher education, the courts have adopted an ahistorical lens.⁴¹⁷ The approach ignores the history of racial oppression communities of color have endured in the United States⁴¹⁸—a history that often left communities of color with an inability to access quality education to prepare for college⁴¹⁹—as well as the adoption of explicit exclusionary policies and practices in higher education denying Black and Brown applicants access to higher education institutions.⁴²⁰ Courts have taken similar ahistorical approaches to other issues that do not raise claims of racial discrimination but are nonetheless deeply intertwined with race dynamics.⁴²¹ For instance, courts do not generally consider the history of racialization in disability⁴²² and property law⁴²³ disputes, though race has shaped both the notions of disability and property and how the law treats both.

Two decades into the twenty-first century, the courts treat “race” as a static formal category (i.e., white, Black, or Asian) or set of colors, without regard to the social context that informs how race as a social construct has shaped and continues to shape social relations.⁴²⁴ In race discrimination claims in the employment context, for instance, race has been reduced to and remains a formal category which the courts treat as an immutable trait, and courts thereby mechanically examine differential treatment across racial categories.⁴²⁵ Each category is assigned the same weight, regardless of the social context that has led to the practices and policies perpetuating racial subordination in the employment context.⁴²⁶ All a policy or practice has to be, to pass legal muster, is “facially neutral.”⁴²⁷

The issues that are deeply intertwined with race but which the courts treat without regard to context go beyond racial discrimination claims. For instance, consider the overcriminalization and disciplining of Black youth. Black youth are more likely to be overpoliced and overcharged with crimes, even for actions that are not criminalized when other youth populations engage in similar behavior.⁴²⁸ In fact, in Massachusetts, Black boys are three times as likely to be charged with a crime for the exact same behavior in which white boys engage.⁴²⁹ Once such cases are before the courts, judges rarely attend to the context informing the cases (e.g., the data showing that white boys engaging in the same behavior are not charged, research showing the behavior of students of color is more likely to be perceived as problematic and disruptive than their white peers, the history of systemic racism that influences the children’s actions, etc.).⁴³⁰ The context regarding the overcriminalization of Black youth is treated as separate from the court processes and outside of the purview of the courts.⁴³¹ And while the courts are not in charge of deciding who to charge, they are responsible for ruling on the cases before them.⁴³² A broader context of how race shapes the cases before them can inform how they rule on the cases with a racial justice orientation in mind.⁴³³

Courts have also come to adopt an approach that does not acknowledge race’s prevalence in the cases before them. Judges are willing to acknowledge racism largely only when it is overt,⁴³⁴ though racism in the twenty-first century is primarily perpetuated through covert mechanisms.⁴³⁵ Race thus becomes rarely mentioned in the decision-making process, and when mentioned by parties, the court considers race through formal definitions.⁴³⁶ For instance, in Department of Homeland Security v. Regents of U.C. , the Supreme Court specifically avoided a discussion of the racist acts the then-president took to remove protections from Deferred Action for Childhood Arrivals (“DACA”) recipients.⁴³⁷ When the discussion of race and racism surfaced in the litigation—the litigants drew connections between immigrants of color and the acts the then-president took—the Court recast the discussion as one that did not implicate race.⁴³⁸ According to the Court, the litigants were merely hyper-sensitive to the president’s comments, and the comments the president made were at most critical of DACA recipients, not racist.⁴³⁹ The severance of ties between the race dynamics implicated in the case and the comments the president made allowed the Court to erase the role of race in their judicial decision-making.⁴⁴⁰ It allowed them to treat the decision and issue before them as devoid of any connection to racialization.⁴⁴¹ Similarly, the conceptualization of race in race-conscious admissions policies in higher education acknowledge race, but when acknowledging race, the court treats the concept as a formal category, analogizing it to diversity or other conceptions that shift the focus away from the role that race plays in shaping society and individual social relations.⁴⁴²

Together, these color-evasive approaches—ahistoricism, formal definitions of race and acontextualism, as well as the lack of acknowledgment of race as a construct—in judicial decision-making function to create a facially neutral, objective separation between judicial decision-making and its racialized outcomes.⁴⁴³ The judicial processes and legal doctrines become disconnected from the racial context.⁴⁴⁴ In color-evasive approaches, racialization is conceptualized as the act of explicitly naming race and racism, where only individual prejudice can be to blame for racist acts.⁴⁴⁵ By comparison, the focus in color-evasive approaches is on identifying specific instances of individual prejudice rather than acknowledging systemic racialization.⁴⁴⁶ Color-evasive approaches essentially obscure the relationship between race and judicial decision-making, such that it prevents the interrogation of the connection between both.⁴⁴⁷ It also prevents interrogation of the underlying deficit narratives painting the stories of litigants of color as epistemologically deficient and framing marginalized people of color as deserving of the racialized outcomes.⁴⁴⁸ Color-evasive approaches effectively preclude any discussion of future legal challenges on the basis of racialization—in sum, color-evasive approaches protect the racialized status quo.

Color-evasiveness is not color-devoid, however. This approach favors certain norms, namely those associated with whiteness, that are part of both jurisprudence and the non-jurisprudential social processes.⁴⁴⁹ Color-evasive approaches also create a false assumption that judges lack the autonomy and agency to reach different outcomes.⁴⁵⁰ This assumption is insidious inasmuch as on the one hand, judges can claim they are not able to correct racial inequity found in cases, if they even acknowledge that racialization exists, but at the same time, they are (unconsciously) using their autonomy and agency to narrow the possible legal venues that predominant litigants of color could leverage to further racial equity.⁴⁵¹

3. Racial Discrimination is Elevated into Exceptionalism Status

In the process of racialized judicial decision-making, the courts have come to conceptualize racism and racial discrimination as abnormal and found only in abhorrent, explicit actions in society.⁴⁵² In this sense, the courts’ conceptualization elevates racial discrimination to a status of exceptionalism that merits exceptional legal standards for parties seeking to prove racial discrimination. As I argued above, the legal burden is placed disproportionately on litigants of color, while making it easier for predominantly white litigants to bring claims of racial discrimination forth. Under an exceptionalism status, the burden people of color carry is to demonstrate how abhorrent or deviant the racialized actions were. Usually parties must demonstrate racial discrimination by showing intentionality on the part of the person perpetuating racism.⁴⁵³ Since Washington v. Davis ,⁴⁵⁴ the courts require a show of intentional racial discrimination, not a demonstration of the disproportionate racialized outcomes certain policies and practices have had.⁴⁵⁵ However, scholars of race and ethnicity have found that as racism evolved in the twentieth century, acts of racism and racial subordination have become covert.⁴⁵⁶ CRT scholars have also argued that racism is so routine in American society such that it rarely shocks the conscience, operating as relational logics underlying different societal actions.⁴⁵⁷

In the twenty-first century, the arguments have flipped: the intentional use of race is often adopted by stakeholders seeking to advance racial equity,⁴⁵⁸ while racial discrimination is often perpetrated through covert mechanisms.⁴⁵⁹ But the courts insist on treating racial discrimination without acknowledging this evolution.⁴⁶⁰ This means that courts require the same exceedingly high standards that were required when stakeholders used race intentionally to discriminate and maintain racial segregation.⁴⁶¹ By applying these heightened standards of scrutiny indiscriminately and without regard to the evolving context, the courts essentially equate the use of race in law that subordinated people of color (e.g., Jim Crow laws and Black codes) with the use of race to advance and remediate racial inequity (e.g., affirmative action policies).⁴⁶² They find both equally problematic and deserving of the same standards and treatment. The courts’ conceptualization of racial discrimination as an exceptional act in society does not account for the evolution of racial social dynamics, and by conceptualizing racial discrimination as an exceptional act, the courts justify their insistence that higher standards are warranted when parties claim racial discrimination.⁴⁶³

D. Institutionalizing the Reproduction of the Racial Inequity via Legitimacy

In the preceding Sections, I introduced the idea that judicial decisionmaking is a system constitutive of race in which judges assign legal burdens differentially across ethnoracial groups by transposing racially-bounded cognitive schemas into their decisions. In this racialized system, three mechanisms can be found present: (1) whiteness as capital that increases epistemic advantages, (2) color-evasive approaches as effective tools that justify racially disparate outcomes, and (3) the elevation of racial discrimination into an exceptionalism status. I conclude my argument in this Section with a discussion of how the legitimacy that racialized judicial decision-making wields in society leads to the institutionalization of racialized outcomes.

1. The Concept of Legitimacy

The legal system is a legitimate institution in society,⁴⁶⁴ and it is this legitimacy that allows judicial decision-making to create and reproduce racial inequity in an institutionalized and durable fashion. Richard Fallon describes three types of legitimacy pertinent to our discussion of judicial decision-making: legitimacy as a (1) legal, (2) sociological, and (3) moral concept.⁴⁶⁵ Legitimacy as a legal concept can be understood through two distinct intertwined notions: substantive legitimacy and authoritative legitimacy. As Fallon argues, “under Marbury v. Madison , a law that is constitutionally invalid or illegitimate possesses no authority to bind.”⁴⁶⁶ This type of legitimacy substantive in nature focuses on correctness or reasonableness as a matter of law and can be challenged.⁴⁶⁷

Individuals may (and often do) contest substantive legal legitimacy, because they disagree on whether a judicial opinion is substantively legally legitimate.⁴⁶⁸ For example, litigants may appeal judicial rulings to a higher court when they believe the rulings are not legally correct or reasonable, up until they encounter the courts of last resort vis-à-vis the dispute at issue, where even if they do not agree with the outcome, the outcome stands.⁴⁶⁹ To return to a prior example, the Department of Homeland Security v. Regents of the U.C. case illustrates this point. In the case, the Supreme Court ruled that the Trump administration acted arbitrarily and capriciously in rescinding DACA.⁴⁷⁰ People who opposed DACA since its inception decried the ruling as lacking substantive legitimacy.⁴⁷¹ In fact, the Trump administration itself issued a statement claiming the Supreme Court’s ruling was wrong.⁴⁷² Because the Supreme Court was the court of last resort for the dispute, the ruling stood even though the litigants did not agree with its outcome.⁴⁷³

Non-litigant parties, including judges, can also disagree with the substantive legal legitimacy of a ruling. For instance, judges in dissenting opinions can contest the substantive legitimacy of a majority opinion.⁴⁷⁴ They may not agree with the substantive correctness or reasonableness of the analysis or outcome as a matter of law.⁴⁷⁵ In the DACA example, Justice Sotomayor disagreed with the Court’s equal protection analysis.⁴⁷⁶

However, while parties and judges may doubt the substantive legitimacy of judicial decisions, the legal system holds a second powerful type of legal legitimacy: authoritative legitimacy.⁴⁷⁷ Authoritative legitimacy refers to the binding character of judicial rulings.⁴⁷⁸ Thus, even if individuals argue or disagree about the substantive legal legitimacy of a judicial decision, few argue that the decision itself is not binding.⁴⁷⁹ To return to the DACA example, the Trump administration went on to resist the ruling for a short period of time after the U.S. Supreme Court issued the holding by delaying its implementation;⁴⁸⁰ however, the administration eventually (begrudgingly) complied and made changes to the policy according to its own interpretation of the ruling.⁴⁸¹ A second ruling issued by a federal district court ordered the immediate undoing of the additional changes to the policy for other technical reasons.⁴⁸² Though the president’s administration did not agree with the ruling, once again, it complied.⁴⁸³ As this example illustrates, a ruling has binding character but can at the same time lack substantive legal legitimacy in the eyes of some stakeholders.

Sociological legitimacy, on the other hand, draws attention to the collective social consensus society gives the legal system, its actors (e.g., judges), processes, and outcomes (e.g., rulings).⁴⁸⁴ The legal system has strong sociological legitimacy “insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanction or mere hope for personal reward.”⁴⁸⁵ Legitimacy in the legal system is granted because people comply, acquiescing to the law.⁴⁸⁶ Through the concept of sociological legitimacy, the legal system—and its processes, people, and outcomes—is legitimate and has claims to authority because society has collectively agreed to be bound by the system.⁴⁸⁷ Thus, while people may not agree with the views or analyses of certain judges or Justices, their actions and rulings have binding authority because they are actors in a system that is deemed sociologically legitimate.⁴⁸⁸ For example, while critics lamented the appointment of Justice Brett Kavanaugh to the Supreme Court,⁴⁸⁹ few would argue that his vote in the 5-4 majority Espinoza v. Montana Department of Revenue ⁴⁹⁰ is illegitimate and therefore leads to a non-binding ruling. People may not think the ruling has substantive legal legitimacy, but few would argue it does not have authoritative legitimacy.

Lastly, legitimacy as a moral concept, argues Fallon, “is a function of moral justifiability or respect-worthiness.”⁴⁹¹ Two types of moral legitimacy are important to note here: ideal theories of moral legitimacy focus on necessary conditions that would make state authority maximally justified or deserving of unanimous respect.⁴⁹² Scholars of ideal theories of moral legitimacy argue that “people who have consented to be governed by specified principles cannot reasonably object when the government applies them;” and that, under ultimate standards of justice, a perfectly just constitutional regime would be legitimate even without the people’s consent.⁴⁹³ On the other hand, minimal theories of moral legitimacy focus on a threshold above which legal regimes are sufficiently just to deserve the support of their subjects, absent better, realistic alternatives.⁴⁹⁴ Scholars advancing minimal theories of moral legitimacy argue that decent human lives are impossible without a government, and it is this need for a government that creates a moral duty to support any reasonably just legal system.⁴⁹⁵

2. Institutionalizing Racial Inequity via Legitimized Racialized Judicial Decision-Making

The three concepts of legitimacy in the preceding Section are simultaneously at play in racialized judicial decision-making and give it legitimacy. Legal legitimacy wields its power to legitimize the social racial hierarchy.⁴⁹⁶ People may not agree with the substantive legal legitimacy of racialized judicial-decision making, finding the substance of such decisionmaking legally unreasonable or incorrect as a matter of law. Though people may disagree, authoritative legal legitimacy is powerful enough to render such decisions binding to establish certain social order,⁴⁹⁷ including the racial hierarchy.

Even critics who may not find racialized judicial decision-making otherwise justified may still find it sociologically legitimate.⁴⁹⁸ Such critics often believe in the importance of the role of law as an institution, such that maintaining its sociological legitimacy to the public preserves it as a governing institution in society.⁴⁹⁹ These critics are more institutionalists in nature and often argue for the importance of consistency, predictability, and stability, all important in a democratic society.⁵⁰⁰

To claim racialized judicial decision-making has sociological legitimacy, the public must conceive of racialized judicial decision-making as “justified, appropriate, or otherwise deserving of support” beyond the fear of sanction or to advance personal gains.⁵⁰¹ I argue that the majority conceive of it as such. This can be attributed to the sociocultural and disciplinary context within which racialized judicial decision-making occurs. Because systemic racism is endemic, racialized outcomes have become normalized in the legal system and in society.⁵⁰² Moreover, as previously noted, the former is undergirded by the sociological legitimacy the legal system and its actors carry in society.⁵⁰³ That is, racialized judicial decisionmaking goes largely unchallenged, because it occurs within a system that holds sociological legitimacy, through judges who are part of that legitimate system, and with legal analyses that have come to be viewed largely as color-blind.⁵⁰⁴

Lastly, a claim of moral legitimacy for racialized judicial decisionmaking seems counterintuitive, i.e., no one would claim racialized judicial decision-making is moral. But this counter-intuitiveness is unsurprising and precisely how racialization in a society where racism is endemic operates. Generally, since the civil rights movement, society has deemed immoral any explicit claims to racism.⁵⁰⁵ To be explicitly racist or act in racist ways draws backlash and moral outrage.⁵⁰⁶ And so, racism in society has adapted to be covert.⁵⁰⁷ Against this backdrop, courts have shifted towards supposed race-neutral approaches in their decision-making.⁵⁰⁸ But instead of removing systemic racism from the system, the supposed race neutrality has merely achieved a silencing of discussions of racial subordination and a masking of racialized processes, which protects them from interrogation, and the normalization of ideas and processes that center white episteme but are couched as race-neutral.⁵⁰⁹ In other words, few would claim that judicial decision-making is racially immoral because racialized judicial-decision making has become the norm, such that it is not conceived as a racialized process in and of itself.⁵¹⁰ The racialized outcomes in the process are often framed as mere coincidence in an otherwise race-neutral process.⁵¹¹

Scholars and advocates of race and the law have long disputed the morality of racialized judicial decision-making, drawing clear connections between judicial decision-making and racialized outcomes.⁵¹² In short, racialized judicial decision-making is unlikely to be framed as moral, but the majoritarian narrative does not conceive of judicial decision-making as racialized and therefore does not critique it as such. Does racialized judicial decision-making have moral legitimacy? Given this complexity, the answer would be yes, if only because it is so normalized that it no longer appears to be racialized, which would open it up to more general critique.

Perhaps moral legitimacy is the most flexible and insidious of the three. Moral legitimacy has the ability to rile up moral panic through notions of social rights and wrongs.⁵¹³ Social contexts normalize certain belief and value systems, which when widespread, can justify the legitimization of a racialized judicial decision-making process through moral panic.⁵¹⁴ For instance, morality is widely embedded in discussions of affirmative action policies in PK-12 and higher education.⁵¹⁵ Some argue that to consider race is morally wrong and that the right thing to do is to be color-evasive in the name of neutrality.⁵¹⁶ Moral panic has called on the legal system to respond accordingly and narrow the legal venues for parties to redress racial inequities via the law.⁵¹⁷

The three concepts all work together, but they may carry different weights in the process and may not all be simultaneously present in the racialized judicial decision-making process. For example, in Plessy , the Court legitimized the idea that racial segregation could be viewed as equality under the law.⁵¹⁸ Some may have critiqued the decision as substantively legally wrong (i.e., the legal doctrines would merit a different outcome) or morally unjust. However, the court and legal system, and thereby its rulings, still carried legally authoritative legitimacy and sociological legitimacy (given that racial segregation at the time was a socially acceptable norm),⁵¹⁹ and separate but equal became the law of the land. In other words, the Court’s decision legitimized racial inequality for Black Americans who claimed racial segregation denied them of equal opportunities in America.

Similarly, Korematsu v. United States upheld the relocation of Japanese Americans into internment camps during World War II.⁵²⁰ Some would argue the decision lacked moral legitimacy, lacked substantive legal legitimacy (decided incorrectly), or even sociological authority (i.e., people did not have a consensus on its legitimacy in society). However, the decision had legal authoritative legitimacy, bearing authority to bind, and the legal system which produced the opinion held sociological authority.⁵²¹ Through the ruling, the court legitimized racial inequality once again.

The legitimized racial hierarchy becomes institutionalized and durable as it spreads throughout the legal system and its jurisdictions. Institutionalization occurs as racialized precedent spreads and becomes binding throughout the structure of the legal system’s federal and state courts. Scholars have identified two types of precedent: vertical and horizontal.⁵²² Vertical precedent refers to precedent which is binding on the court below, while horizontal precedent refers to a court’s own precedent or other persuasive precedent from similarly situated courts in different jurisdictions (e.g., federal appellate courts in different federal circuits).⁵²³ A judicial opinion is only as powerful and impacts governance only as much as its jurisdiction extends, the Supreme Court having the most expansive institutional power to bind the entire nation.⁵²⁴

The institutionalization of the racial hierarchy spreads through vertical and horizontal precedent within and across the court structures. As the courts adopt color-evasive approaches, the legal system adopts them in its horizontal and vertical structures. Similarly, the precedent sets new or modified standards for those who must analyze similar cases. Thus, the institutionalization of the racial hierarchy occurs via top-down and horizontal durable structures.

IV. Discussion and Implications

The late civil rights leader and congressman John Lewis reminded us that “Democracy is not a state. It is an act, and each generation must do its part to help build what we called the Beloved Community, a nation and world society at peace with itself.”⁵²⁵ Generation after generation has struggled to advance racial justice in America.⁵²⁶ The work has been a patchwork of solutions proposed and victories gained, coupled with sociopolitical and cultural movements in opposition, resisting and at times succeeding to stall and regress racial progress.⁵²⁷ Two decades into the twenty-first century, the United States stands amidst a fraught sociopolitical and cultural context in which ethnoracially marginalized communities and civil rights advocates have called for the need to address racial inequities in society⁵²⁸ and an increasingly loud resistance seeks to prevent any such change to the racialized status quo.⁵²⁹

Popular discourse is informed by research across disciplines, and such interdisciplinary work has shone light on racial inequities that continue to plague society⁵³⁰ and social movements seeking racial progress.⁵³¹ Recent work also highlights movements that are reframing racial progress itself as racist to prevent the progress from taking place.⁵³² Public discourse has led to concrete consequences in public policy. For instance, using covert language such as “family values,” “freedom of choice,” and “traditional life,” state lawmakers have stirred up controversy in education regarding the discussion of race-relations in the schools and higher education institutions and have consequently adopted laws that prohibit such discussions.⁵³³ State lawmakers have also passed voter-suppression laws that add challenges, particularly for voters of color, to exercise their right to vote.⁵³⁴ At the state and federal level, we have seen a renewed government and public interest in “strongman” arguments that appeal to autocratic, authoritarian tendencies and seek to enforce government control using force.⁵³⁵ These arguments in particular seek to prevent the advancement of rights for groups who have been historically marginalized in U.S. society.⁵³⁶ In other words, through these social and policy movements, stakeholders seek to maintain the racialized status quo in society.⁵³⁷

This polarized social context raises difficult questions regarding the role of the courts, given their function as social institutions shaping society: what role do/should courts play regarding pernicious social racial inequity? To interrogate the relationship between the courts and society requires an unpacking of different legal processes. Here, I focused on judicial decisionmaking, reframing it as a racialized system, a phenomenon present within and across different areas of law.⁵³⁸ By doing so, I draw attention to the social processes that are often couched as neutral in a legal system that favors legal formalism.

Exposing and revealing the racialized nature of judicial decision-making as a system reemphasizes that the choices judges make are not valuefree, but value-laden. Thus, the issue is not whether they shape race dynamics through what they choose to reify in their decision-making processes (they do), or whether notions of the construct of race shape their decision-making (they do). The focus rather is drawn to an interrogation of which values and norms they choose to (or inadvertently) reify in the process: which norms they pay attention to, which they ignore, and ultimately, which they choose to adopt in their decisions. In a racialized society, all individuals are socialized into race dynamics, and through each social interaction, these conceptions of racialized schematic thinking can be and are reinforced.⁵³⁹

Thus, this framework calls for an examination and critical reflection of what those racialized norms are and how they are reinforced in the judicial decision-making process. It calls for intentionality and the importance of judges being conscious of the critical nexus between their decision-making and the outcomes of their decisions. In a racialized society and a racialized decision-making system, even those who care about furthering racial equity in a democratic society are bound to replicate and reify the racial caste given that racialized schematic thinking is often operating in the subconscious and is “taken-for-granted.”⁵⁴⁰ The racialized status quo is replicated by following it intentionally or inadvertently.⁵⁴¹

However, I do not mean to suggest that judges are destined to merely replicate racialized patterns by following the dominant norms of the legal field. To the contrary, they have agency. Their decisions, as I described above in the preceding Sections, show that they have used this agency within disciplinary constraints to uphold racialized patterns and to allocate greater burdens on marginalized people of color.⁵⁴² Agency, thus, is key in reshaping judicial decision-making with democratic goals in mind. Judges have agency to deviate, to consider context, to think about democracy as they make decisions, and to consider their role as part of the legal system, a social institution that shapes social relations in our democracy.⁵⁴³ An inevitable feature of democratic governments is that not everyone can win all the time; simultaneous wins and losses for any group of people are the norm in a system of government where voices in the majority govern.⁵⁴⁴ Yet, in U.S. democracy, racialized legal losses are disproportionately distributed to ethnoracially minoritized communities (i.e., they accumulate too many relative losses).⁵⁴⁵ As I described above, within and across areas of the law, judicial decision-making has also disproportionately allocated burdens in the legal process to ethnoracially minoritized groups.⁵⁴⁶ Through judicial decision-making, judges can reshape the legal system in ways that disrupt the social racial hierarchy, rather than reproduce the social racial hierarchy. Judges can play an invaluable role via their judicial decision-making in furthering racial justice in our democratic society. Through their choices, they elevate certain norms and have the latitude to decide which ones.

The discussion of agency in judicial decision-making also raises fundamental questions beyond the process itself regarding how we train future judges and who gets to enjoy judicial agency.⁵⁴⁷ In other words, given the agency judges have in decision-making, how do law schools train law students, some of whom will go on to occupy positions in the judiciary? What do law students learn about the role of judges in interpreting the law and its implications for society? These questions fall within a larger conversation of the importance of adopting a critical lens in legal education as students are socialized into the profession and learn to think about the law and the paradigms that govern the legal field.⁵⁴⁸

Moreover, given the profound impact of the implications of judicial decision-making, who gets to serve as a judge?⁵⁴⁹ Research has found that people of color remain underrepresented in the judiciary⁵⁵⁰ and that they experience hurdles in reaching such positions, making their views less represented in the decision-making process.⁵⁵¹ Diversifying the judiciary is therefore another imperative. Of course, a judge merely sharing racial identities with the parties in a case is insufficient to spur the use of judicial agency to disrupt racialized judicial decision-making.⁵⁵² Intentional criticality is necessary. Overall, the answers to these questions can be part of the solution to addressing racialized judicial-decision making.

Racial equity in a democratic society that deems itself largely progressive is imperative, especially when there has been a growth in racial inequity across multiple sectors of society. Social institutions, such as the courts, have a role to play in working towards furthering racial equity. By reframing judicial decision-making as a racialized system, it becomes evident that by claiming to stay silent or neutral, the courts uphold certain social norms that are not neutral—they benefit particular communities, groups, and individuals. Reframing judicial decision-making as racialized draws attention to the importance of intentionality in judicial decisionmaking and to the agency that judges hold in making decisions. Leveraging this agency, judges can orient their decision-making towards a more just democratic society.