The Stare Decisis of Racial Inequality: Supreme Court Race Jurisprudence and the Legacy of Legal...

Critical Sociology2014, Vol 40(1) 67 –88© The Author(s) 2013

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DOI: 10.1177/0896920512466276crs.sagepub.com

The Stare Decisis of Racial Inequality: Supreme Court Race Jurisprudence and the Legacy of Legal Apartheid in the United States

Wendy Leo MooreTexas A&M University, USA

AbstractMore than a generation after the civil rights movement, racial inequality persists as a defining characteristic of United States social structure. Scholars from across the political spectrum have discussed and debated the causes of persistent racial inequality, offering various interpretations. Yet in the work of these otherwise different scholars, there is a consistent theme – the post civil rights era is an era of ‘formal legal equality’. Employing a method of structurally situated critical discourse analysis comparing Supreme Court race jurisprudence in the Post-Civil War and the post-Civil Rights Eras, this article interrogates this deployment of the concept of formal equality. The analysis reveals that in both eras the Supreme Court utilizes a discursive frame that asserts the position of formal legal equality, yet simultaneously employs narrative moves that ignore social structural mechanisms of racial inequality. The result is a legacy of legal framing that deploys an ‘epistemology of ignorance’ as a mechanism to protect white privilege, power, and wealth.

Keywordsblack history, critical legal studies, discrimination, equality, race and ethnicity

Introduction

More than a generation after the civil rights movement racial inequality persists as a defining characteristic of United States social structure. A multitude of scholars, ranging from social scien-tists to legal scholars to media pundits, have discussed and debated the causes of persistent racial inequality in the US, all offering varying explanations. Throughout these discussions and debates, one consistent theme resonates, both explicitly and in the subtle underpinnings: the post-civil rights era is a new legal era characterized by ‘formal legal equality’. The idea that legal changes

Corresponding author:Wendy Leo Moore, Department of Sociology, Texas A&M University, 311 Academic Building, College Station, TX 77843-4351, USA. Email: [email protected]

466276 CRS40110.1177/0896920512466276Critical SociologyMoore2013

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occurring in the 1950s and 1960s fundamentally transformed the United States legal structure – altering it from one that legally sanctioned and maintained racial inequality to one that provided equality under the law for all individuals regardless of race – functions as the underlying assump-tion of a vast amount of scholarly work and popular commentary on race and racial inequality.1 Formal legal equality has become a loaded concept in the post-civil rights era, having the power to absolve the legal system, as a mechanism of the state, of its active role in the production, reproduction, and enforcement of racial hierarchy.

Certainly not all scholars and/or commentators on race in the United States view this newly constructed formal legal equality in the same manner. While some view it as a concrete basis for ending both legal and state centered racially remedial policies (see, for example, Chavez, 1996; Farber and Sherry, 1997; Pell, 2003, 2004; Sowell, 1984), others see formal legal equality in and of itself as a profoundly insufficient means of addressing deep structural racial inequality (see, for example, Caldwell, 1999; Crenshaw, 1988; Powell, 1995).

Yet despite their widely divergent conclusions about formal equality, these scholars (either explicitly or tacitly) all contextualize their analyses of racial inequality within the premise that the legal system of the post-civil rights era is characterized by a formal legal equality that is distinguishable from previous eras.

Here, I problematize the presumption that often occurs in scholarly work and popular discourse that the legal system of the post-civil rights era is fundamentally transformed, that it has been altered in ways that ‘level the playing field’ with regard to race and law. Instead, I suggest that when analyzed through a race critical sociological lens, one that explicitly accounts for the connec-tion between racial ideology, discourse, and social structural dynamics of race (Bonilla-Silva, 1997), contemporary legal frames regarding race and racial inequality quite clearly contain ves-tiges of the legal frames of previous eras. Through a comparative analysis of key cases in the US Supreme Court’s race jurisprudence in the post-Civil War era and the post-civil rights era, I illus-trate how the Court formulates the concept of formal legal equality shortly after the Civil War, long before the Civil Rights Movement.2 Moreover, I illustrate how the Court juxtaposes discursive assertions of formal equality with the divorcing of such equality from structural realities of racial inequality in both the Jim Crow and the post-civil rights eras.

The Court’s process of asserting formal legal equality, on the one hand, and then on the other hand, deploying discursive tactics that disconnect analyses of legal equality from the racial struc-ture becomes a legal ‘epistemology of ignorance’ (Mills, 1997; Steinberg, 2007). In other words, the Court engages in a process of not knowing with regard to racially oppressive social arrange-ments, institutional organization, and structural inequalities – a process which then permits the Court to make assertions about equality under the law without enforcing any legal action to alter racially oppressive conditions.

As such, the Supreme Court creates a racial legal logic through an epistemology of ignorance when interpreting the Civil War amendments (the 13th, 14th, and 15th Amendments) to the Constitution, amendments which became a mechanism through which the Court protects white privilege, power, and wealth. The same racial logic persists in the Court’s decisions in the post-civil rights era. This analysis of cases from both eras reveals this stare decisis of racial inequality.

Legal Racial Reproduction and Race Critical Sociology

Race and racism have structured all the major economic, political, and social institutions of the United States since this country’s inception. As Joe Feagin (2000) notes, ‘race relations – or more accurately racist relations – are not in, but rather of this society’ (see also Carmichael and Hamilton,

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1977). Throughout US history, notions of race and racist hierarchy were waged by white elites, with simultaneous assertions of the rhetorical principles of freedom, democracy, and equality under the law, as a political tool in order to justify the exploitation of human beings and land (Bell, 1987, 2000; Browne-Marshall, 2007; Lopez, 1997; Mills, 1997). Beginning with the construction of a constitution that recognized and politically protected racialized slavery, the law has operated as a central mechanism in the construction and maintenance of the racial state (Bell, 1987; Berry, 1994 [1971]; Crenshaw et al., 1995; Feagin, 2010). Historically, US law has been explicitly used to construct and enforce a white citizenry and government (see, for example, Glenn, 2002; Jacobson, 1998; Lopez, 1997; Lowe, 1997; Mills, 1997); to justify the theft and exploitation of land and human bodies for white economic gain (see, for example, Cornell, 1988; Feagin, 2010; Montejano, 1987); to define the boundaries of racial categories used to convey unearned privilege to whites and the forced subjugation of people of color (see, for example, Cornell, 1988; Davis, 1996; Gross, 1998; Jacobson, 1998; Lopez, 1997); and to prevent interracial alliances between those legally defined as racially distinct (see, for example, Davis, 1996; Gross, 1998; Lopez, 1997). In fact, Cheryl Harris (1993) has suggested that this legal history has imbued ‘whiteness’ with the legal characteristics of property. As such, race, racism, and the law have been fundamentally inter-connected throughout the history of the United States. Because of this intricate connection, explicit interrogations of the continued role of the law with regard to the maintenance and protection of racial inequality become an essential project for social scientific investigation concerning racial reproduction. Such a project, I suggest, requires an analytical marriage of legal processes and race critical sociology.

The explication of the connection between racialized discourses and ideologies and the racial-ized social structure has been an important intervention of contemporary sociological research concerning racial inequality in the post-civil rights era. Eduardo Bonilla-Silva (1997) notes that racial ideologies (and the discourses that deploy them) and the racial social structure are funda-mentally and recursively connected (see also Bonilla-Silva and Baiocchi, 2008; Feagin, 2010; Steinberg, 2007). In other words, when a society becomes racially structured, ‘there develops a racial ideology … This ideology is not simply a ‘superstructural’ phenomenon (a mere reflection of the racialized system), but becomes the organizational map that guides the actions of racial actors in society. It becomes as real as the relations it organizes’ (Bonilla-Silva, 1997: 470). Bonilla-Silva (2003), as well as other contemporary race scholars, has documented how racial discourses in the post-civil rights era function to obscure the structural realities of racism and racial inequality. In doing do, racial discourses have created an ideology through communicative interaction that functions to perpetuate racial inequality while simultaneously asserting a message of equality and democracy (see also Bonilla Silva and Baiocchi, 2008; Bonilla-Silva and Forman, 2000; Feagin, 2000, 2006, 2010; Gallagher, 2003; Moore, 2008). Thus, racial ideologies, and the discursive tactics that normalize them, play a central, though often covert, role in justifying struc-tural arrangements of racial inequality. The same racial ideologies also provide a logic, or an ‘organizational map’, that assists in the perpetuation of racially oppressive social systems and institutions (Carmichael and Hamilton, 1977; Guinier and Torres, 2002; Mills, 1997).

The power of these discursive tactics of white racial ideology, what Bonilla Silva and Baiocchi (2008) have called a ‘white racial common sense’, lies in the way that they both justify and cam-ouflage racialized practices, institutional organization, and structural relations (see also Feagin, 2010). As Mills (1997: 18) explains, this white logic becomes ‘a cognitive model that precludes self-transparency and genuine understanding of social realities’. In other words, what Mills (2007) has termed an ‘epistemology of ignorance’ (see also Steinberg 2007). This process of not knowing, failing to reflexively observe the realities of racial oppression that contradict dominant ideologies


of democracy and equality, becomes a broader socially shared cognitive process, a collective mem-ory based upon not knowing about racial oppression in the minds of white people (Brekhus et al., 2010; Steinberg, 2007). Thus, critical examinations of racial discursive tactics are essential to a broader understanding of the mechanisms of racial inequality (see also Bonilla-Silva, 2003; Hill, 2008). This connection between discourse and structure is particularly relevant with regard to US Supreme Court case law because, while case law is fundamentally discursive, the decisions of the Court are binding upon social actors making it powerfully structuring, not merely through ideo-logical power, but also through the coercive power of the state.

The explanation and interpretation of the application and boundaries of statutory law and the US Constitution presented in case law represent a discursive communicative text, through which the broader ideological positions of the Court are revealed. As such, case law concerning race and racial oppression become an example of the racial discourse of the state. Importantly, this racial discourse is simultaneously legally binding upon social actors in a more direct manner than that of other discursive texts. Thomas Hobbes (1971 [1681]) suggested that it is not wisdom but authority that makes law. And though the court system, within the US scheme of law, is not set up to make law, as courts interpret the boundaries of law it wields incredible power over the application of law. As Gentithes (2009: 799) notes, ‘while [the court] can do nothing, it can prevent anything from being done’. With its power to delineate constitutional and statutory reach, the text of Supreme Court case law concerning race provides both an interesting, and structurally important case for examining racial discourse and legal racial epistemology.

A Method of Structurally Contextualized Critical Discourse Analysis

In analyzing cases of the Supreme Court, I conduct what I refer to as a structurally contextualized critical discourse analysis of key cases concerning legal issues regarding racial inequality and dis-crimination. Informed by both the sociological theoretical interventions in race scholarship and traditional methods of critical discourse analysis, this method connects discourse and structure in the analysis phase. Specifically, this process of analysis has three elements: identification of the legal frames employed in the race related cases of the Supreme Court, an analysis of the discursive tactics employed in the Court’s explanation and justification of the frames, and a critical evaluation of how the legal framing and discourse of the Court relates to and connects with the racialized practices, institutional arrangements, and structures that maintain white supremacy.

The first element of the analysis requires identifying the framing of the Court with regard to the law and the legal issues at hand in the relevant cases. A frame can be thought of as the logic that structures the boundaries and form of a process of communication (Strydom, 2000; Van Dijk, 1997).3 In the case of court-made legal decisions, the frame is produced through the logic of meaning making the court engages in, in order to explicate the set-up for the legal analysis. In other words, the legal frame is the discursively produced logic map which sets up the boundaries of particular laws, the relevant facts that fall within those boundaries, the manner in which the law applies in reference to those facts, and finally, the Court’s legal decision in a particular case. This first aspect of the analysis, then, looks at what Bonilla-Silva (1997) might call the ‘organizational map’ that frames the Court’s racial legal reasoning. The benefit of a frame analysis, as such, is that it allows us to look at both what is in the Court’s frame and what gets excluded from the frame, as well as what the Court determines is irrelevant to the application of the law.

In conjunction with the frame analysis, I employ a process of critical discourse analysis to observe the racial discourse of the Court with regard to larger frames (Foucault, 1972). In other words, I

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examine the racial narratives and discursive moves utilized by the Court that objectify, rationalize, and normalize the broader framing of the legal issues (Bonilla-Silva, 2003; Chase, 1995). Focusing on the racial meanings, tropes, and ideations asserted (and ignored) by the Court, I examine the way the Court creates discursive support for its legal frame through the deployment of a particular racial logic (Feagin, 2010; Mills, 1997; Steinberg, 2007; Zuberi and Bonilla-Silva, 2008).

The central question with regard to the Court’s frame and discourse in race-related legal cases is how and whether the Court is deploying an epistemology of ignorance with regard to the racial practices, institutional arrangements, and structural organization characteristic of the historical moment during which the Court is speaking. As noted above, racial discourses (and the broader racial ideology they employ) are fundamentally embedded within the racial social structure. Thus one cannot fully understand the meanings and consequences of particular discursive frames or nar-ratives without situating them within the context of the racial structure within which they are cre-ated, contested, and re-created (see Bonilla-Silva, 2003; Gross, 1998; Omi and Winant, 1994). A structurally contextualized critical discourse analysis, then, is informed by race-critical historical and contemporary empirical research that illuminates the mechanisms of racial oppression. Thus, it is through the lens of this empirical interrogation of racial oppression that I evaluate the framing and discourse of the Supreme Court with regard to issues concerning race, racial discrimination, and the law.4

The Supreme Court: Key Cases

My analysis of Supreme Court case law compares two important race-related cases decided early after the Civil War era, cases that gave initial substantive legal meaning to acts of Reconstruction, including the 13th, 14th, and 15th Amendments to the Constitution, to three cases decided in the post-Civil Rights era – after the 1954 case of Brown v. The Board of Education, the 1964 Civil Rights Act, and 1965 Voting Rights Acts – legal reforms that came to signify the transformation to formal legal equality.

I focus exclusively on Supreme Court cases (as opposed to appellate-level court decisions or decisions of state courts) for three important reasons. First, decisions of the Supreme Court provide precedential authority. Not only are Supreme Court cases often legally binding upon other federal and state courts, but the Supreme Court is the ultimate and final authority in inter-pretation of the US Constitution, giving its decisions particular force with regard to stare deci-sis, or the legal notion that courts will abide by former court decisions on the same topic or follow precedent.5 Which brings up the second reason for focusing on Supreme Court cases: as a result of the passage of the 13th, 14th, and 15th Amendments to the Constitution after the US Civil War, abolishing slavery, granting citizenship and equal protection of the law to African Americans, and granting voting rights to African Americans, questions of race and racism have been fundamentally tied to the Constitution, and thus often require a constitutional analysis. This means that the Supreme Court is the ultimate authoritative legal body with regard to these questions, and the resulting racial precedent of the Supreme Court becomes extremely powerful at all levels of law. And finally, decisions of the Supreme Court often have what legal scholars refer to as a ‘chilling effect’, meaning that once the Court has ruled in a particular manner, liti-gants and lawyers tend not to challenge the Courts’ interpretation directly because the force of precedent tends to always mean that a head-on challenge to Supreme Court doctrine will fail (for discussion, see Ross, 1990). This implies that even the choices of legal argument and strat-egy pursued by lawyers and legislators are deeply influenced by the discursive frames employed by the Supreme Court.


Because my analysis requires thick description and considerable discussion of racial practices and structures, for this article, I restrict myself to analyzing a total of five Supreme Court cases. Utilizing a process of theoretical selection, I selected two key cases in the post-Civil War era, and three in the post-civil rights era. These cases were selected based upon their legal relevance with regard to their authority in framing the entire body of race jurisprudence in each era, as well as for their representation of different institutional contexts (for discussions of theoretical sampling and data relevance, see Denzin and Lincoln, 2005; Johnston, 2002; Lofland and Lofland, 1995). Speaking to the later rationale, Mills (1997, 2003) notes that white supremacy is enacted through white domination over a wide range of institutional and social settings. Thus, I choose cases that represent the Court’s racial logic with regard to several different social and institutional contexts. In addition, however, largely because of their precedential significance, these cases exemplify broader legal patterns with regard to the race jurisprudence (or theory of law with regard to race) in each of the two legal eras I address (see Bell, 2000).

From the pre-civil rights era, I selected the two legal cases that were most influential with regard to giving meaning to the post-Civil War Constitutional amendments, and which ultimately shaped the legal force of the legal changes that accompanied Reconstruction. First, I analyze The Civil Rights Cases (1883),6 a consolidated group of cases which challenged the authority of the United States Congress to pass laws prohibiting individuals from excluding African Americans from public accommodations such as restaurants, hotels, and transportation services. This case provided one of the first and most authoritative analyses during this era of the 13th and 14th Amendments with regard to race, and the power of Congress to act in the deconstruction of racist exclusions in conjunction with these amendments. The second, the infamous 1896 Plessy v. Ferguson7 case, further explicated the meaning of the 13th and 14th Amendments, ultimately set-ting forth the doctrine of ‘separate but equal’, which was widely recognized as the definitive legal doctrine with regard to race until the 1954 Brown v. Board of Education decision (a case that signifies to many scholars the start of the Civil Rights Movement, at least with regard to the law [Morris, 1999]).

In the post-civil rights era there has been significantly more Supreme Court case law regard-ing race and racial inequality. I focus on three cases which are representative of general princi-ples of relatively settled law with regard to race and (in)equality (I document their record of citation in endnotes). I begin by looking at the 1974 case of Milliken v. Bradley,8 a case concern-ing segregation in public schools in a line of cases directly resulting from Brown v. Board of Education. Not only is the selection of this case theoretically relevant because it is in the direct line of Brown, the civil rights case which many have argued epitomizes the Court’s departure from stare decisis with regard to race, but Milliken also sets the groundwork for legal framing of race-related case law in other institutional areas. The second case I examine is Washington v. Davis,9 a 1974 decision that provides a 14th Amendment analysis of the issue of employment discrimination and has become perhaps the most influential case of the contemporary era with regard to the legal framing of racial discrimination and the reach of the 14th Amendment (Flagg, 1993). Finally, I examine the death penalty case of McCleskey v. Kemp,10 a case in which the Court considers the legal implications of severe racial disparities in death penalty sentencing. Ultimately, this case sets the guidelines for state action with regard to race and the criminal justice system.

Through the analyses of these five cases, I reveal a remarkable consistency of frame and dis-course with regard to the structure of racial oppression since the end of the Civil War. This similar-ity transcends legal eras, permeating from the Jim Crow era through the post-civil rights era to today, illuminating a stare decisis of racial inequality based in an epistemology of ignorance.

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Creating the Precedent: The Supreme Court and Reconstruction

Between the end of the Civil War and the late 1870s, a series of legal actions were taken by the then-named Radical Republicans to ensure the end of racialized slavery and to secure equal rights of citizenship to African Americans (Bell, 2000; Browne-Marshall, 2007; Franklin, 2000; Urofsky, 1988). Reconstruction resulted in the 13th, 14th, and 15th Amendments to the Constitution, as well as a series of Civil Rights Acts enacted by Congress between 1870 and 1875. The scope of these legal initiatives, however, was immediately and severely limited when the Supreme Court spoke to interpret the legitimacy of these pieces of legislation, as well as the meaning and application of Reconstruction Amendments. The 1883 case that has come to be called the Civil Rights Cases exemplifies the Court’s jurisprudential frame with regard to attempts at racial reform.11

The Civil Rights Cases were actually a series of cases concerning the constitutionality of the Civil Rights Act of 1875. These cases were consolidated into a singular decision by the Court con-cerning the constitutionality of the 1875 Act. The cases involved the Section of the Civil Rights Act that prohibited racial discrimination in so-called ‘public accommodations’, such as ‘inns, public conveyances on land or water, theatres, and other places of public amusement’. White owners of such public accommodations challenged the authority of Congress to pass a law prohibiting exclu-sions based upon race, while Congress suggested that its authority lay in the mandates of both the 13th and 14th Amendments. Each of these Amendments contains a final clause, which states that ‘Congress shall have power to enforce this article by appropriate legislation’. The Civil Rights Cases thus provided the Supreme Court with an opportunity to explicate the legal boundaries of the 13th and 14th Amendments and to determine the powers these Amendments granted to Congress with regard to the passage of civil rights legislation.

The 14th Amendment to the Constitution states, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ Congress asserted that this guarantee of the equal protection under the law (the Constitutional basis for claims of racial legal equality), com-bined with the clause which gave Congress the right to act to enforce such protection, allowed the passage of federal legislation prohibiting racial discrimination in so-called public accommoda-tions. The Supreme Court, however, disagreed, suggesting that the actions of owners of public accommodations were ‘private’ actions, not ‘state’ actions, meaning that the 14th Amendment did not apply to the actions of private individuals but instead only applied to actions taken by the state.

Importantly, the Court begins its analysis of the civil rights legislation in the Civil Rights Cases by setting forth a frame identifying the legal command of the 14th Amendment. The Court states that the Amendment:

nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. (p.17, italics added)

By drawing from the actual language of the 14th Amendment, the Court sets up a legal frame that emphasizes the legal requirement of equal legal treatment. In other words, the Court’s legal frame in the Civil Rights Cases begins with an assertion of formal legal equality. Sociologist Max Weber (1925, 1966) discussed the concept of formal equality (or, as he often phrased it, ‘equality before the law’) in his work, and defined formal equality as ‘the abstract regularity of the execution


of authority’ (1966: 224). Similarly, some contemporary civil rights scholars have defined formal equality as ‘a civil rights policy in which all Americans, regardless of race or color, are held to be of equal legal status … entitled to equal legal treatment’ (Brooks et al., 1995: 8, italics added).12 Using these definitions, we see that in the Civil Rights Cases the Court is, with plain language, asserting a legal framing of the 14th Amendment that is based on formal legal equality.

Yet even as the Court asserts formal equality, it deploys a corresponding legal frame that facili-tates the maintenance and protection of White property interests by creating a legal distinction between public versus private actions. The Court says:

… it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual. (p. 17, italics added)

Thus, the Court created a legal framing that asserted the 14th Amendment’s guarantee of equal legal treatment – formal legal equality – but subsequently limited the reach of the law to actions taken by the state or state actors, not allowing it to reach the actions of individuals.13 As a result, the Court frames formal legal equality in a manner that does not protect the right of African Americans to be free from discrimination in public accommodations, but instead protects the rights of whites to actively exclude African Americans from their property. The Court achieves this through discursive maneuvering that de-contextualizes the legal construction of a public and private sphere from the realities of racial practices and the structural outcomes of those practices.

This distinction between ‘public’ versus ‘private’ action with regard to the protections of the 14th Amendment made by the Court in the Civil Rights Cases is critical to understanding the white racially framed logic of the Court at that particular time. Not only was this distinction key to the Court’s protection of white structural privilege, power, and wealth, but the public/private distinc-tion has legally bound the scope of the 14th Amendment since this decision was made.14 The Court made two potentially problematic underlying assumptions, not explicitly addressed in the text, in order to facilitate the division of public and private. First, the Court seems to assume that ‘public accommodations’ are owned by individual citizens in the same manner that private land and dwellings are owned. Individuals are presumed to have the same right to exclude in their owner-ship of businesses open to the public as they would in the ownership of a private home, despite the fundamentally public nature of the businesses as recognized by Congress. This was not a neces-sary or natural conclusion, but was instead a construction with regard to race and property that reinforced existing racialized property relations. The Court’s frame protected white property accu-mulation that resulted from the era of slavery, during which African Americans were unjustly deprived of any right or access to own property (in fact, this was an era which held African Americans themselves to be a form of property) (see Feagin, 2010; Harris, 1993; Williams, 1991).

Following from this first assumption, the Court next proffers a structurally disconnected anal-ysis of individual versus state behavior. In an overly simplistic separation of ‘state’ and ‘indi-vidual’, the Court ignores mechanisms of systematic racial oppression in this historical era. The laws, which created, abided, and ultimately enforced racialized slavery, functioned to construct African Americans not only as a subordinate class of human beings, but literally as a less than human ‘species of property’ within the law.15 The enforcement of this institutional arrangement created and sanctioned a form of subordination that required the compliance and participation of individual citizens much more than that of state actors. It was private white individuals (as opposed to state actors such as government officials or police officers) who actually enslaved and

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controlled African American bodies, who worked as ‘over-seers’ of slave plantations, and who patrolled the countryside as slave catchers (DuBois, 2002; Franklin, 2000). White individuals also did the work of violently enforcing, upon the minds and bodies of African Americans, their inferior status (Fanon, 2004; Feagin, 2000, 2010). The state alone simply would not have had the manpower to enforce systemic racial subjugation. Thus, what the ante-bellum legal structure did, in part, was to grant authority to the white citizenry to enforce, with state support, the racial supe-riority of whites and the racial inferiority of African Americans. These practices could clearly have been viewed as a state sanctioned and state supported custom, if not an explicit state action. Yet, the Court limits the legal reach of the 14th Amendment through its deployment of additional legal frames, legally constructing public accommodations as private property and separating state action as distinct from private action. Thus the Court decouples legal equality and the racial social structure.

Next, the Court took up the issue of the 13th Amendment’s language, allowing Congress to enact laws that eliminate slavery and involuntary servitude. In addressing whether the language of the 13th Amendment gave Congress the authority to prohibit racial exclusion in public accommo-dations, the Court noted;

… the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. (p. 20)

Here, again, the Court asserts a frame that espouses universal civil and political freedom (a senti-ment of formal legal equality) and goes even further to state that the 13th Amendment grants Congress the power to abolish, not just slavery, but all badges and incidents of slavery.16 Yet, again, the Court follows this framing with discursive moves that protect white interests deploy-ing a tormented racial logic. Discussing the issue of exclusion from public accommodations the Court said:

Where does any slavery or servitude, or badge of either, arise from such an act of denial [into public accommodations]? … It may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of inns and public conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself … (pp. 21–2)

With this discursive turn, the very Court that had introduced the legal frame of badges and inci-dents of slavery squashes the notion of badges and incidents to near meaninglessness (see Bell, 2000: 57). With this action, the Court ignores the interconnected institutional mechanisms that supported the bondage of African Americans in slavery and asserts that continued exclusion from public accommodations, created, in part, to make escape from slavery more difficult, was no part of the servitude itself. Through that logic, the Court concludes that Congress cannot prohibit racial exclusions in public accommodations.

In 1896, the Supreme Court spoke again with regard to race and the boundaries of the 13th and 14th Amendments in the now infamous case of Plessy v. Ferguson.17 Plessy was brought before the Court as a test case to challenge the legality of a Louisiana state law, which required that all in-state trains racially segregate their passenger cars such that whites and African Americans were seated in separate cars. Mr Plessy, a man whom the state identified as ‘seven eighths Caucasian and one


eighth African blood’, was arrested for refusing to vacate a passenger car designated as a white car. Drawing upon and strengthening the reasoning of the Court in the Civil Rights Cases, the Court in Plessy said,

The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. (p. 544, italics added)

Here, again, the Court clearly emphasizes the frame of formal legal equality noting, in fact, that ‘absolute equality’ is required and recognized by the Court.18 With an explicitly stated frame of legal equality, the Court engages in a racial discourse that explicates the boundaries of absolute equality of the two races before the law. Through this racial discourse, the Court concludes that formal legal equality is not violated by state mandated social separation. The Court does this with a discursive move that suggests that the interests of white people and African Americans are equally situated, noting that ‘a commingling of the two races’ in settings like public transportation would be ‘unsatisfactory to either’ (p. 544).

The Court alludes to implicit understandings of racial ideologies and practices, asserting a par-ticular legal knowledge about the general consensus among people of all races to an aversion to commingling. The presumptive foundation for such logic includes the tacit notion that African Americans and whites are in similar position with regard to decision-making authority concerning such commingling. Indeed, this is required for the framing of absolute legal equality to fit with the discursive move that then permits legal segregation. The Court’s premise is repeated, but qualified when it responds to the argument that legally enforced racial segregation is a badge of inferiority, which would be prohibited by the 13th Amendment. The Court opines:

the assumption [is] that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. (p. 551)

The Court re-frames the argument that racial segregation is a mechanism of racial oppression and instead suggests that if segregation is related to racial inferiority, then it is merely because of the (mis)perception of African Americans. In what might be the most illustrative example of an epistemology of ignorance, the Court denies that racial segregation is a mechanism of white supremacy, and instead asserts that it is a mutually agreed upon regulation of commingling that is only related to racial oppression when African Americans choose to construct it in that manner.

Through this framing and discursive maneuvering, the Plessy Court constructed the legal doc-trine that came to be known as ‘separate but equal’. By itself, the decision and the legal principle of ‘separate but equal’ represent a model of legal formalism. The Court holds that facilities can be racially segregated but they must be equal. And, while it may make some readers bristle, the Court is not incorrect in the assertion that mere separation does not automatically lead to inequality. Think, for example, of a system in which people are separated on public conveyances by alphabetic order of last name – A–M in the front, N–Z in the back, where the front and back are absolutely equal facilities (as the Court claims it requires in Plessy). Of course, the relevant question becomes whether racial segregation is simply equal separation, the answer to which lies in the social prac-tices, institutions, and structures of racial oppression in the late 1800s.

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It is quite clear that racial segregation was motivated by both racial hostility and a desire to maintain the racial oppression of African Americans (Bell, 2000; Franklin, 2000; Woodward, 1974). It is equally clear that separate was never meant to mean equal during the Plessy era. The Plessy decision ushered in the era of Jim Crow laws – laws designed to segregate whites and African Americans in all facets of social life. Segregated spaces, however, were anything but equal (Feagin, 2010; Woodward, 1974). As C. Vann Woodward has noted, ‘the Jim Crow laws, unlike feudal laws, did not assign the subordinate group a fixed status in society. They were constantly pushing [African Americans] farther down’ (1974: 108). Thus, Plessy represents a clear example of the Court’s fractionalized racial discourse that asserted legal equality while blithely obscuring racial practices and structure.

The discursive tactics of the Supreme Court in the post-Civil War era provided the legal protec-tion for and reification of white supremacy. More than that, however, the legal framing and discur-sive tactics of the Court formed a racial legal logic that became deeply embedded in race related law – a stare decisis of legal racial inequality that tacitly carried into the race jurisprudence of the post-civil rights era.

The Stare decisis of Racial Inequality

Education Apartheid in the Post-Civil Rights Era

In 1954, the Supreme Court held, in the case of Brown v. the Board of Education, that ‘separate but equal’ was not equal under the law, overturning the Plessy decision and thereby rejecting the con-struction of legal equality that permitted racial segregation. The Brown case was followed by legal challenges, along with civil rights organizing, protesting, and uprisings in American cities (Branch, 1988; Kluger, 2004 [1975]). In the 1960s, US Congress enacted another series of civil rights legis-lation, including the 1964 Civil Rights Act, which prohibited discrimination in public accommoda-tions, employment, schools, and other institutions that received federal funds and were involved in the stream of national commerce.19 These legal changes provide the basis for contemporary asser-tions that the post-civil rights era ushered in a dramatically distinct legal frame – a new era of formal legal equality. However, a critical analysis reveals that the Court continues to rely on a white logic in the post-civil right era, one strikingly similar to that of the Court’s racial analysis post-Civil War.

I begin where the presumed break from stare decisis began: in the realm of education. Many scholars mark Brown v. The Board of Education as one of the most significant illustrations of the Supreme Court’s rejection of stare decisis (see, for example, Barnhart, 2005; Gentithes, 2009). Yet 20 years after Brown, the Court was confronted with a dilemma that tested the Court’s break with precedent in the area of segregated education. In 1974, the Court heard Milliken v. Bradley,20 a case involving racially segregated schools in Detroit. In the Milliken case, the Federal District Court had found that the Detroit Board of Education and the State of Michigan had acted in a manner that they knew would create a system of racial segregation in Detroit city schools. Upon this finding, the District Court was charged with overseeing a remedy in the form a desegregation plan. The dilemma, however, was the extreme residential segregation in the city of Detroit, a city referred to as the ‘doughnut city’ by many scholars (see, for example, Orfield and Eaton, 1997). The city of Detroit was 98% African American, while all of the surrounding suburbs were almost exclusively white. As a result, the Court determined that the only practical remedy would be a desegregation plan that included the entire Detroit metropolitan area. In a structurally connected holding, the District Court said:


Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area … it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we speak of governmental action we should not view the different agencies as a collection of unrelated units. (345 F. Supp. 914 [1972]: 940)

Additionally, the District Court authorized a desegregation plan that included bussing between Detroit area schools and the schools in the surrounding white suburbs.

When the Milliken case reached the Supreme Court, however, the Court rejected (or rather ignored) the structural analysis presented by the District Court, holding that the District Court could not order the school Districts outside of Detroit to desegregate along with Detroit schools, absent a finding of intentional discrimination on the part of each of the 53 suburban school boards. The Supreme Court held in Milliken:

With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case [which involved only the Detroit school district] and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy … (p. 745)

Following the precedential frame of the previous legal ear, the 1974 Supreme Court in Milliken ignored the institutional and structural mechanisms that created and maintained racial segregation and inequality in education. Once again, the Court’s primary concern became the property interests of white people. Specifically, the property interests of those living in these mostly exclusively white suburbs were protected in Milliken through discursive moves that isolated one institutional setting from another (e.g. schools/school districts are legally distinct from housing authorities), as well as isolating localities within states (e.g. the state of Michigan, the city of Detroit, and each one of the distinct 53 suburbs were recognized as distinct legal entities). With this legal framing, the Court concluded that only with proof of intentional actions of school board members in each of the 53 suburban districts could the District Court order a remedy that included those districts in a school desegregation plan.

Through this legal framing, the Milliken Court obscured the obvious fact that the members of the 53 Detroit suburb school boards had no need to affirmatively act to create racial segregation in the schools because each of these suburban school districts was embedded in neighborhoods that were exclusively white. Thus, the structural mechanisms of residential segregation were clearly tied to the desire of whites to retain segregated schools (see Massey and Denton, 1993) and provided the suburban school districts with the outcome of racial exclusivity, regardless of their intentions concerning racial segregation in schools.

Residential segregation, which occurs in cities across the US and has been particularly acute in Northern cities like Detroit, was a result of systemic racism that included white flight from urban areas (often motivated by desire for educational segregation) and combined with discrimination in housing rentals, home ownership, and home lending practices (see Jargowsky, 1997; Katznelson, 2005; Massey and Denton, 1993). Moreover, as the District Court explicitly noted, state and federal government agencies, in conjunction with private actors in real estate and brokerage, cre-ated and enforced the construction of segregated exclusively white neighborhoods (also see Massey and Denton, 1993). The Court’s decision to ignore the interconnected institutional and structural mechanisms of racial residential and educational segregation created a legal frame that isolates

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individual institutions (school boards/housing authorities) and locales (cities/suburbs) while revealing a legal frame that is similar to that of the Civil Rights Cases and Plessy. This frame asserts formal legal equality, while deploying discursive maneuvers that construe equality as divorced from structural mechanisms of racial oppression.

The outcome of the Court’s decision in Milliken has been a reification of segregation in schools resulting from the geographical racial segregation created by public and private actors in the decades leading up to the Milliken case. The concept of neighborhood schools – legally sanctioned and protected from Constitutional challenge despite their deeply racialized demo-graphics – has resulted in a contemporary system of educational apartheid (Street, 2005). Schools today remain as segregated as they were during the time of Milliken. In fact, they remain as racially segregated as they were before Brown v. Board of Education. Moreover, vast resource inequality in racially segregated schools continues to follow a pattern of racial lines across the United States (see Kotlowitz, 1991; Kozol, 1998, 2006; Orfield and Eaton, 1997; Street, 2005).

Legal Employment Inequality in the Post-Civil Rights Era

The structurally disconnected legal framing of the Milliken Court proved a harbinger of things to come in other substantive areas of the law regarding racial inequality in the post-civil rights era. In 1970, African American police officers brought a class action suit alleging that the District of Columbia and its Metropolitan Police Department were discriminating against them in hiring and promotion by using a personnel test, called Test 21, said to measure the verbal skills of job appli-cants. The plaintiffs argued that Test 21 ‘bore no relationship to job performance’ and had a dis-criminatory impact on African American candidates in such a way that four times as many African American applicants as white applicants failed to pass the test. In 1976, their case, Washington v. Davis21 reached the Supreme Court. Ignoring the issue of the validity of Test 21 in determining job performance, the dispositive issue for the Court became proof of individualized intent to discrimi-nate on the basis of race. The Court said:

[t]he central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race … [O]ur cases have not embraced the proposition that a law, or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. (p. 239)

With this discursive move, the Court wiped out any Constitutional protection from systemic and/or institutionalized regulations and policies that differentially affect people of color in employ-ment. The Court limited Constitutional protections for employment discrimination to only those instances in which plaintiffs could prove that an actor (or group of related actors, such as a school board) was acting with racial animus.22

Not only did the Court’s decision in Davis place an extremely high burden on people of color attempting to prove racial discrimination; complaints of discrimination now had to be supported by knowledge of what was in the mind of employers – intent and animus. Additionally, the Court eliminated legal remedies for the effects of historical racial oppression and tacit or unconscious bias, as well as institutional racism (Flagg, 1993). With its requirement of specific intentional ani-mosity, the Court signaled that it would no longer entertain arguments about the contemporary consequences of historical racial oppression. Thus the wealth, education, and employment experi-ence accumulated by whites during previous eras of explicit exclusions received complete


protection from the Court in Davis – yet another example of the Court’s construction of protections for the property interests of whites.22

Beyond legally protecting the historical gains of whites that resulted from racial oppression, the Court also signaled its unwillingness to acknowledge contemporary mechanisms of racial oppres-sion that affect the field of employment. Significant social science research indicates, for example, that discriminatory actions are often motivated by tacit or unconscious racial bias (see, for example, Lawrence, 1995; Steele, 2010). In addition, the Court’s legal framing of discrimination leaves no room to interrogate interconnected institutional inequalities (for example, the connection between unequal education and performance on employment tests like Test 21) or racialized spatial and economic segregation (see, for example, Bobo et al., 1997; Bonilla-Silva, 2003; Bonilla-Silva and Forman, 2000; Feagin, 2000, 2006; Lawrence, 1995; Massey and Denton, 1993; Wellman, 1993).

Similar to the persistent segregation and inequality seen in education, racial economic inequal-ity remains a seemingly permanent feature of the United States social structure. In 2009, 25.8% of African Americans lived below the poverty level, while only 12.8% of whites did.23 Moreover, as a result of housing markets opening to the white middle class after World War II, racial wealth disparities have increased in the post-civil rights era (Oliver and Shapiro, 2006). Racial disparities in unemployment, as well as labor market stratification by race, remain as structurally embedded as they were in the pre-civil rights era (Feagin, 2010). The cases of Milliken and Davis, through a structurally disconnected racial legal frame and discourse, legally protect the primary mechanisms (of private actors and the state) that tend to reproduce these conditions. Moreover, we need only look to the realm of the criminal justice system to see how centrally involved the state is in the legal reproduction of racial inequality.

Legal Sanctions for Post-Civil Rights Racialized State Control and Repression

Beginning in the 1970s and continuing into the 1980s under the Reagan administration, the US gov-ernment organized with state and local governments to engage in what has been called a ‘War on Drugs’ and a ‘War on Crime’. As Michael Tonry (1995) noted, it was clear early on that this so-called war, with its focus on street crime and street-level policing, would focus on and have extremely detrimental effects for black communities. Between 1980 and1991, the incarceration rate for African Americans tripled, despite the fact that crime rates decreased during this decade. By the beginning of the 1990s, the rate of incarceration for African Americans was seven times that of whites (Tonry, 1995, 2011). State policies of crime control, in particular policies concerning drugs, focused on heavy militaristic policing in residentially segregated black neighborhoods (Alexander, 2010; Wacquant, 2001). As a result, arrest rates for African Americans for drugs were much higher (in some states as much as 20 times higher) than those of whites, despite overwhelming empirical evi-dence that drug use and sales occur at approximately the same rate among whites and blacks (Alexander, 2010; Tonry, 2011). This, combined with unprecedented increases in incarceration rates, has resulted in extreme racial disparities in incarceration, resulting in physical state control and bureaucratic control over members of the black community. Beginning with continual yearly increases since 1980s to the present, these practices have led to a particular prison structure in which the US now incarcerates more people per capita than any country in the world.

In 1987, the Supreme Court was asked to evaluate the legality of systemic racialized disparities through the lens of disparities in criminal sentencing and the death penalty. In the case of McCleskey v. Kemp,24 an African American man had been convicted of murder and sentenced to death under the Georgia capital punishment statute. Using a social scientific study called the ‘Baldus Study’ to make their argument, McCleskey’s lawyers argued that Georgia’s imposition of the death penalty was racially discriminatory, in violation of the 14th Amendment. The Baldus Study revealed that,

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in the state of Georgia, persons who murder whites are more likely to be sentenced to death than persons who murder blacks and that black murderers are more likely than white murderers to receive the death penalty.

Particularly relevant in the Supreme Court’s analysis in this case is that the Court, in accordance with the decision of the Court of Appeals, accepted the validity of the Baldus Study, thus seeming to judicially recognize the structural empirical reality of racial disparities in death penalty sentenc-ing. However, the Court rejected McCleskey’s claim that these racial disparities violated his right to equal protection of the law under the 14th Amendment. The Court said:

to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. (p. 292, emphasis added)

Anticipating this requirement of discriminatory purpose or intent, (because of the Court’s prior analyses in cases like Davis), McCleskey’s lawyers suggested that the state of Georgia, as a whole, had acted with discriminatory purpose because they retained the use of a death penalty process and that state actors (legislators), through their employment of the death penalty, had knowingly cre-ated racial disparities in death sentences. The Court also rejected this argument:

… ‘discriminatory purpose’ … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group … For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. (pp. 297–8, emphasis added)

Within a frame, as established by precedent, that required discriminatory purpose and intent and a discursive move that defined discriminatory purpose as only those actions taken because they have racially discriminatory effect, the Court conclusively wiped out any legal remedy for systemic rac-ism in criminal justice policy.

The results of the Court’s framing and discourse in McCleskey have been devastating for the African American community. As Michelle Alexander (2010) has noted, the Court’s willingness to ignore the practices, institutional arrangements, and structures that lead to extreme racial dis-parities and mass incarceration and state control over black men (and increasingly women) has resulted in what she calls the ‘New Jim Crow’. Of particular relevance are the ways in which current felon exclusion laws (laws that prohibit felons from voting, serving on juries, holding certain jobs, acquiring federal funds for education, living in federal public housing, and more) look identical to laws from the Jim Crow era. The Court’s unwillingness to acknowledge the con-nection between institutionalized racist practices in the criminal justice system and the disparate outcomes for African Americans has resulted in the legal protection of laws that look nearly identical to the laws of Jim Crow – laws which have a similar effect on the African American community at large.

Conclusion

The principle of stare decisis, or the judicial obligation to consult with and abide by previous case law in determining present cases, has been an element of US law since its foundations in English common law. Commitment to precedent is regarded as a vital element of the Court’s legitimacy (see Gentithes, 2009). Unfortunately, with regard to race, the precedent of US law lies in a legal system that orchestrated enslavement, genocide, theft, and oppression, justified through a legal


frame that facilitated the construction of racial dehumanization in the name of a system of racial oppression based upon white supremacy (Lopez, 1997). The Civil Rights Movement, and the legal initiatives that emerged from that social era, have been viewed, within the scholarly and popular discourse, as a departure from this precedent of racial oppression. Brown v. The Board of Education (1954) was viewed as the Supreme Court’s break from precedent, the end of the stare decisis of race. A closer analysis, however, reveals a deeper and more persistent connection between racial oppression and the law – a stare decisis of racial oppression that transcends legal eras and remains embedded in contemporary law.

As I illustrated, the Supreme Court has a long history – at least since the end of the United States Civil War – of asserting a legal commitment to formal legal equality while at the same time creating contingent legal frames and engaging in discursive moves that disconnect legal equality from structural reality. The result, in the post-Civil War era through the present, is a legal frame that protects white privilege, power, and wealth through a race jurisprudence that ignores and denies the real mechanisms of racial oppression. Mills (1997: 18–19) notes that the legitimacy of white supremacy in a democratic political formation requires a ‘white epistemic authority’ – in other words, ‘white misunderstanding, misrepresentation, evasion, and self-deception on matters related to race’. Throughout US history, the Supreme Court has been a source of this white epis-temic authority, engaging in an epistemology of ignorance that enables it to attest to formal legal equality while preventing meaningful racial change through discursively asserted misunderstand-ings, misrepresentations, and evasion regarding the mechanisms of racial oppression. With its principle of ‘separate but equal’, as established in the post-Civil War era, and the principle of intentional, purposeful, individual action with racial animus established in the post-Civil Rights era, the Court has remained committed to an epistemology of ignorance that has legally protected and reproduced white privilege, power, and wealth throughout US history.

Presumptions, both in scholarly and popular discourse, that contemporary racial inequality is no longer a result of the law, that it is de facto rather than de jure inequality, are based upon misunder-standings concerning racial legal framing. As this analysis indicates, post-civil rights laws and the Supreme Court that interpreted and explicated those laws, remain a powerful apparatus of the state with regard to the reproduction of racial oppression. Rather than continue to presume that the con-cept of formal legal equality indicates some form of meaningful legal change, it is time that we recognize it as a rhetorical tool in a broader racial discourse that supports a legal epistemology of ignorance.

AcknowledgementsI want to thank all the people who took time to give me suggestions that made this work stronger and better, including Joyce Bell, Glenn Bracey, Sarah Gatson, Zulema Valdez, Joe Feagin, Kay S. Varela, and Jennifer Guillėn. In addition, I want to extend a special thank you to the Critical Sociology anonymous reviewers whose input was unusually thoughtful and thorough.

FundingThis article was supported by a Faculty Summer Research Grant from the Racial and Ethnic Studies Institute at Texas A&M University.

Notes

1. This characterization can be seen in Michael Omi and Howard Winant’s conceptualization, in the impor-tant book on race, Racial Formation in the United States (Routledge, 1994), of the shift in the structure of the racial order from a racial state to a state marked by a racial hegemony – the idea being a clear shift in the role of the law in the post-civil rights era. Moreover, as Tomas Jimenez notes in his book,

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Replenished Ethnicity (University of California Press, 2010), the central underpinning on much contem-porary work on immigration and assimilation relies upon the belief that the legal changes of the Civil Rights Movement provide a ‘more level playing field’ for immigrants of color (p. 17). For further exam-ples in the field of legal scholarship, see also Racial Justice in the Age of Obama (Princeton University Press, 2009) by Roy L. Brooks.

2. Throughout this article I refer to ‘the Court’ as a body with the power to speak, as is the custom in the legal profession (Brooks, 2002). In doing so, I do not mean to suggest that I buy into the notion that when ‘the Court’ speaks it is above the subjective partialities of those individuals who are the judges on the court. Clearly the individuals who sit as judges on the courts that I quote have subscribed to particular racial ideologies. However, I utilize the notion of ‘the Court’ speaking in order to illustrate the discursive patterns that occur through a particular voice of the state – patterns that come from different courts and different judges, but all draw upon elements of particular racialized frames.

3. I borrow here also from the work of social movements scholars (see e.g. Gamson and Modigliani, 1987; Gamson and Stuart, 1992) and communication scholars (see e.g. Tankard et al., 1991), who in turn bor-row from the work of Erving Goffman in his famous book Frame Analysis (Harper and Row, 1974). Having read Goffman, I concur with a general consensus that his work is dense and instruction on the methodological practical application of his theory of frame analysis is anything but forthcoming in his text (see Scheff, 2005). However, drawing upon the work of scholars who have employed his method, I extrapolate the concept of frame here in a manner that I believe is clearly visible in the organizational logic of Supreme Court case law.

4. Although I set forth the elements of a structurally contextualized critical discourse analysis separately, I do so only for the sake of clarity in each aspect of the analysis. I do not mean to suggest that the analysis takes place in a linear manner. In fact, in each case there is overlap and integration of racial framing and discursive moves. It is not practicable to separate out the frame analysis and the discourse analysis as the discourse takes place in connection with the framing. Moreover, the power of the frame analysis is in its ability to identify what the Court is failing to discuss with regard to the mechanisms of racial oppression. Thus, the analytical process must begin with, and continually return to, an understanding of the mechan-ics of racial oppression through engagement with race critical historical and contemporary research on race. The method, then, reflexively engages critical scholarship and theory and analysis of textual frames and discursive moves through the lens of that scholarship and theory.

5. Here I am not commenting on either the pros or cons of the principle of stare decisis, nor am I discussing the jurisprudence of stare decisis (e.g. the theory of how the concept of stare decisis is/should be used in legal decision making processes). Rather, I am illustrating how a particular legal logic gets embedded in the Supreme Court’s race jurisprudence, and remains for over a century in a manner that mirrors the process of stare decisis. The legal principle of stare decisis comes from the latin Maxim, stare decisis et non quieta movere – or, ‘stand by the thing decided and do not disturb the calm’. For an analysis of the jurisprudence of stare decisis and its pros and cons, see, for example, Barnhart (2005), Constitutional Commentary (2005), Gentithes (2009), Healy (2001), Rehnquist (1986).

6. Civil Rights Cases, 109 US 3 (1883). 7. Plessy v. Ferguson, 163 US 537 (1896). 8. Milliken v. Bradley, 418 US 717 (1974). 9. Washington v. Davis, 426 US 229 (1976).10. McCleskey v. Kemp, 481 US 279 (1987).11. See Note 6.12. In order to assess whether the Court frames legal decisions in the context of ‘formal legal equality’ it

is essential to have an operational definition of the concept itself. The concept of formal legal equality permeates both scholarly and popular understandings of race and the legal system in the contemporary racial landscape. Unfortunately, however, it rarely gets expressly defined. Instead, the notion of formal


equality gets passively articulated as the embodiment of the legal frames that exist in the contemporary era. In other words, formal equality has come to mean ‘the prohibition against explicit racial exclusion, like “whites only” signs, or those explicit signifiers of racial subjugation common to the era of Jim Crow’ (Crenshaw et al., 1995: xiv). When viewed through a sociological lens, this construction is problemati-cally teleological and historically contingent. Formal equality and the post-civil rights legal frame have simply been conflated, functioning merely to define one another; that is, the post-civil rights era is the era of formal equality, and formal equality is the legal system characteristic of the post-civil rights era. I reject this teleological and historically contingent definition for an operational definition of the concept that stands on its own. Conceptualizing formal legal equality in the Weberian sense allows an analysis that pairs with the language of the Court.

13. It is arguable that the intent of the Radical Republicans in the construction and passage of the Reconstruction civil rights legislature was completely ignored by the Court in this decision (see e.g. Jones v. Alfred Mayer Co. 392 US 409 [1968]). However, ascertaining the intent of legislatures in the process of law making is a heavily contested subject in the realm of judicial decision making. There is much debate as to whether the ‘legislature’ can be considered to have an intent given that it is composed of many actors with wide ranging motivations and intents. The Court does, however, consider legislative intent in this decision as well as others, thus this issue is arguably relevant, given that the choice when to consider and when not to consider legislative intent often seem ambiguous and arbitrary, similar to the decisions about when to consider social structure. However, this issue is beyond the scope of this article. For more discussion of the issue see Brooks (2002).

14. The Civil Rights Cases has been cited in 329 Supreme Court cases, between 1883 and 2010, for the principle that a violation of equal protection under the 14th Amendment requires state action (see the Shepard’s Citations index). The legal analysis of state action has not remained static throughout this time. In particular, in the decades following the Civil Rights Cases the Court recognized that private citizens acting under color of state law or in conjunction with a widespread conspiracy that supplants state authority could engage in discriminatory action that violates the 14th Amendment (see e.g. Collins v. Hardyman 341 US 651[1951] and Griffin v. Breckenridge 403 US 88 [1971]). The Court also recog-nized the broad reach of action of the state when the judiciary is asked to enforce the discrimination of provate citizens (see e.g. Shelley v. Kraemer 334 US1 [1948]). And in the Civil Rights Era decision of Jones v. Alfred Mayer Co. 392 US 409 (1968), the Warren Court held that as a result of the 13th Amendment of the Constitution, Congress was granted the authority to pass legislation which limited the ability of private citizens to discriminate in ways that affected the fundamental rights of African Americans. (The Jones case did not overrule the Civil Rights Cases explicitly, though the analyses seemed to be at odds; however, the analysis in Jones has never been extended, and has since been severely limited; see Note 13). Despite these doctrinal moves, however, there has never been a move by the Supreme Court to judicially acknowledge the structurally systemic and institutionalized connec-tion between customary and systematic discriminatory actions by private white citizens in conjunction with state acceptance and/or acquiescence in the enforcement of racial oppression, such as the one I posit herein. Furthermore, the Court in the post-civil rights era has confirmed that the 14th Amendment prohibits only official state conduct of discrimination on the basis of race (see Washington v. Davis discussed herein, Note 7).

15. See Prigg v. Pennsylvania, 41 US (16 Pet.) 536 (1842).16. This recognition of the power of Congress to eliminate the badges and incidents of slavery gets used,

by the Warren Court during the Civil Rights Era in the case of Jones v. Alfred Mayer Co. (392 US 409 [1968]), as a basis to uphold another legislative action of the Radical Republicans (42 USC.S. Sect. 1982), dealing with the prohibition of discrimination in the right to make and participate in the

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making of contracts. The expansive view of the 13th Amendment posited in Jones, however, is unique and proves in the long run to be an aberration as the Court returns to its extremely narrow (and thus near meaningless) construction of the Amendment in the 1981 case of City of Memphis v. Greene (451 US 100).

17. See Note 7.18. In fact, the Court’s commitment in Plessy (as well as the Civil Rights Cases) to formal legal equal-

ity is precisely what gives rise to the legal strategy implemented by the National Association for the Advancement of Colored People (NAACP) in its civil rights legislation which ultimately led to Brown v. Board of Education: namely, the attack on educational inequality in segregated schools (see e.g. McLaurin v. Okalhoma 339 US 637 [1950] and Sweatt v. Painter 339 US 629 [1950]).

19. Note that the changed framing of 13th Amendment jurisprudence posited in the Jones case, (see Notes 11 and 13) with regard to the right of Congress to pass legislation to eliminate the badges and incidents of slavery, could have been used as a basis to uphold the right of Congress to pass the 1964 (and sub-sequent) legislation concerning the prohibition of discrimination in public accommodations, although this would arguably have required explicitly overruling the decision in the Civil Rights Cases. A major-ity of the Court, however, declined to extend the 13th Amendment analysis of the Jones Court, and instead the public accommodations section (Section II) of the 1964 Civil Rights Act was upheld by the Court based upon an analysis that granted Congress the power to legislate public accommodations as a result of the Commerce Clause of the Constitution granting Congress the right to legislate Interstate Commerce (see e.g. Heart of Atlanta Motel v. United States 379 US 241 [1964] and Katzenbach v. McClung 379 US 294 [1964]).

20. See Note 8.21. See Note 9.22. The Supreme Court has recognized that pattern and practice discrimination in employment can be

regulated by Congress via the 1964 Civil Rights Act and subsequent Congressional legislation. Yet even in cases involving the 1964 Civil Rights Act, Title VII specifically, the burden on plaintiffs to prove the means of discrimination when intentional racial animus is not present is extremely burden-some and the legal jurisprudence in the area of Title VII law has become much closer to the 14th Amendment jurisprudence discussed herein (see e.g. Ward’s Cove Packing Co. v. Antonio, 109 S. Ct. 2115 [1989] and Ricci v. DeStafano, 557 US [2009]; also as an illustration of the movement of the Court in this respect, compare the Court’s analysis in Griggs v. Duke Power Co., 401 US 424 [1971] to the later analysis in Richmond v. J. A. Croson Co., 488 US 469 [1989] and Adarand v. Pena, 515 US 200 [1995]).

23. The Washington v. Davis case has been cited 526 times for the principle that a law or policy claimed to be discriminatory must be shown to have a racially discriminatory purpose.

24. See http://www.census.gov/compendia/statab/2012/tables/12s0711.pdf.25. See Note 10.

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