William & Mary Bill of Rights Journal


The Supreme Court’s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court’s racial jurisprudence stem from the Court’s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination.

Because the Equal Protection Clause contains few judicially manageable standards for distinguishing between constitutional imperatives and legislative policy preferences, the Supreme Court should normally defer to the representative branches for the formulation of prudent racial policies. However, the Supreme Court’'s insulation from immediate political pressure may give the Court greater relative institutional competence than the representative branches in making one type of determination that is relevant to enforcement of the Equal Protection Clause. Utilizing its power of judicial review, theCourt could disqualify from constitutional cognizance non-remedial equality arguments that were not being asserted with good faith sincerity.

A subjective standard of good faith could be used to reject arguments that were consciously motivated by a desire to sacrifice the interests of one race in order to benefit the interests of another. In addition, an objective standard of good faith could be used to reject arguments whose unconscious racial motivations were revealed by contemporary theories of cognitive dissonance and implicit bias. Although race remains too salient a social category for the concept of colorblind, race neutrality to have much meaning in contemporary United States culture, constitutional recognition of only good faith racial motivations might be able to compensate for the ongoing subtle forms of structural discrimination that are embedded in the current distribution of resources.