Objecting to Race

Abstract

Modern efforts by bar associations, courts, and legislatures to regulate the use of race talk in civil rights and criminal cases have faltered not only in describing its various race-neutral, race-coded, and race-conscious forms, but also in prescribing the scope of its permissible use under legal ethics codes and standards, judicial rules, and statutes. The descriptive and prescriptive difficulty of defining and regulating race talk in the courtroom and in advocacy more generally raises fundamental normative and instrumental questions about racial justice and professional ethics in the lawyering process, a process marked by the daily exercise of mainly unseen and mostly unaccountable discretion. Normative questions –– whether lawyers should object to race –– turn on intrinsic personal and professional value commitments to race, dignity, identity, and role. Instrumental questions –– when and how lawyers should object to race –– rest on tactical, outcome-oriented calculations about the best interests of clients, groups, organizations, and sometimes whole communities. This Essay revisits ongoing questions of race talk and racial representation in the context of current civil rights and criminal justice practice through the prism of the recent United State Supreme Court decision in Calhoun v. United States and its underlying federal trial and appellate proceedings. Building on Calhoun’s factual and legal foundation, the Essay proceeds in three parts. Part I explores the definition of race talk garnered from the text of Justice Sotomayor’s statement in Calhoun. Part II examines the prosecutorial exploitation of race talk gleaned from the briefs of the U.S. Attorney’s Office for the Western District of Texas and the Solicitor General’s Office of the U.S. Department of Justice. Part III considers defense-driven objections to race talk culled from the Calhoun defense team’s federal appellate brief and petition for writ of certiorari and from the opinions of the U.S. Court of Appeals for the Fifth Circuit and the statement of Justice Sotomayor. Although limited in scope, the Essay seeks in pursuing these inquiries to transform the pedagogy and practice of civil rights and criminal law in American courtrooms as well as in law school classrooms and community clinics.