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Abstract:
We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as well. Racial disparity in socioeconomic well-being has always been, and continues to be, a central feature of American life.

Of course, we each choose how we come to terms with racial inequality, how we rationalize, compartmentalize, or explain this phenomenon, and how we integrate our "raced" existence into our personal view of the world. For nearly three generations, we have undertaken a largely sustained collective effort to eliminate racial discrimination in American society. For some, the persistence of chronic racial inequality in the face of sustained efforts to ameliorate racial discrimination provides subtle confirmation of deeply held suspicions regarding the intellectual, cultural, or economic capacity of African Americans. For others, the persistence of racial disparity highlights the limits of the prevailing approach to antidiscrimination law and makes the case for greater intervention.

Professor Glenn C. Loury's "The Anatomy of Racial Inequality" is a thoroughgoing attempt to ascertain the root causes of racial inequality and provide insight into the thought process that causes us to view racial disparity with complacency and indifference. However, Loury's project is not merely descriptive. His structural account of racial inequality provides the staging ground from which he launches a deep critique of prevailing views on American race relations. Racial inequity is not the product of some inherent deficiency in the minds and hearts of African Americans. Rather, it is a social pathology "deeply rooted in American history" - a pathology that "evolved in tandem with American political and economic institutions, and with cultural practices that supported and legitimated those institutions . . . that were often deeply biased against blacks." Loury therefore rejects the conservative policy of indifference toward racial disparities, and declares emphatically that racial inequality is "an American tragedy [and] a national, not merely a communal disgrace."

In a very real sense, Loury's free and extended meditation on racial inequality and the prospects of racial reform provides us with an insightful theoretical and discursive structure through which we can engage the struggle for racial justice anew. In this review essay, I offer an extended examination and critique of the major arguments presented in the book. In the course of connecting Loury's work with historic and contemporary literature on racial disparities in American life, I offer some thoughts on the impact his project may have upon the shape of American race relations to come.

race, race relations, minority, class, inequality, racism, slavery, stigma, social groups, economics,neoclassical economics, behavioral economics, due process, inclusion, inclusionary, merit-based, rhetoric, affirmative action, discrimination, equal protection, civil rights, African American, black, white, colorblind, democratic theory, democracy, hierarchy, critical race theory, equal opportunity, caste, subordination, freedom, social theory, legal history, Fourteenth Amendment, constitution, racial equality

Abstract:
We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests.

Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially disfavored groups, our society nevertheless retains informal structures and networks that have the effect of perpetuating social inequality among groups - social inequality that was once secured by formal law. Confronted with entrenched and destructive patterns of social and economic stratification, what more can law do to realize democracy for members of subordinated groups?

This paper offers some preliminary thoughts on how law should respond, and in particular, what we might ask of judges and the Constitution that they interpret and uphold. The paper presents a normative and descriptive account of "successful" judging in constitutional civil rights cases in a democratic society. By "successful," I mean to describe a style of judging that is self-consciously engaged in the constructive enterprise of giving full meaning and content to minority rights in a manner consistent with the best of the American democratic tradition of freedom and majority rule. Successful judging, then, is judging deliberately styled to realize democracy for subordinated groups in American society.

I seek to accomplish three main tasks in this paper. First, I argue for a particular understanding of the judicial role within our constitutional democracy in the contentious area of race relations. Second, I argue that judges committed to realizing democracy for members of socially disfavored groups should embrace an antisubordination interpretation of the Fourteenth Amendment and the Court's equality jurisprudence as a guiding principle of adjudication for constitutional cases that pit the rights and interests of socially disfavored and minority groups against majority rule. Third, I provide a functionalist account for how this idealized style of adjudication works. Drawing upon the insights and impressions of free jazz movement and musician Ornette Coleman in particular, I argue that the hallmarks of Coleman's work - freedom, improvisation, reimagination, and courage - serve as useful points of departure for deepening our understanding of what judges committed to realizing democracy for members of subordinated groups do or ought to do.

race, race relations, judge, judging, adjudication, jazz, democracy, democratic theory, political theory, social theory, antisubordination, colorblindness, Supreme Court, African American, black, white, due process, equality, Equality Jurisprudence, equal protection, substantive equality, liberty, discrimination, racism, affirmative action, social groups, hierarchy, civil rights, pragmatism, critical race theory, critical theory, minority, minority rights, countermajoritarian difficulty, inclusion, caste, subordination, freedom, postmodernism, Fourteenth Amendment, constitution, racial equality