35 Pages Posted: 18 Jul 2007
More questions have been raised about the race bias of the late Chief Justice William Rehnquist than of any other recent member of the Supreme Court. A judge's race bias may be reflected in his race jurisprudence. This contention turns out to be surprisingly difficult to prove. When a Supreme Court Justice writes an opinion, he explains himself in a way that lends itself to insulation from charges of bias. Even widely reviled decisions like Dred Scott and Korematsu do not read as overtly racist.
This article explores the possible connections between the considerable evidence that Rehnquist was race-biased and the fact that he ruled against African-American and Latino litigants in virtually every civil rights case during his three decades on the Supreme Court. It evaluates the claims that (1) the racism charge is unfair, (2) race bias is irrelevant to the work of Supreme Court justices, (3) unconscious racial bias colored Rehnquist's decision making, (4) overt bias determined Rehnquist's decisions, and (5) Rehnquist's decisions were consistent with his conservative ideology and non-race-based.
The article uses Rehnquist to draw lessons for evaluations of other judges and judicial candidates. Often conservative judges and race-biased judges would come out the same way in civil rights cases, but most people would evaluate those judges quite differently. Racist intent may matter more than some scholars suggest it should.
Recent developments in social science cast light on the power of unconscious racism; these advances raise concerns about pragmatic judges and minimalist opinions.
Keywords: race, racism, race jurisprudence, civil rights, discrimination, racial discrimination, Supreme Court, Rehnquist
Suggested Citation: Suggested Citation
Butler, Paul, A Symposium on the Legacy of the Rehnquist Court: Rehnquist, Racism, and Race Jurisprudence. George Washington Law Review, Vol. 74, No. 1019, 2006; GWU Law School Public Law Research Paper No. 313; GWU Legal Studies Research Paper No. 313. Available at SSRN: https://ssrn.com/abstract=1001463