Undignified: The Supreme Court, Racial Justice, and Dignity Claims

63 Pages Posted: 10 Mar 2016 Last revised: 12 Oct 2017

Date Written: June 1, 2017


The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the concept of dignity in order to redress discrimination against disadvantaged classes. Other opinions make appeals to dignity in order to protect or recognize fundamental rights or liberties for marginalized groups. These rulings—together with progressive uses of dignity in foreign constitutional law and in human rights and humanitarian law—have led some scholars to promote dignity-based litigation as an alternative to the Court’s formal equality doctrine. Advocates of racial justice, however, should approach these arguments with extreme skepticism. Current doctrine relies upon dignity to invalidate race-based remedies and civil rights statutes. The Court, however, does not recognize the stigmatizing nature of de facto discrimination. Equal protection doctrine extends greater protection to privileged classes than to disadvantaged groups. Judicial ideology, rather than lack of a persuasive theory of equality, explains these results.

Keywords: equal protection, dignity, obergefell, constitutional law, social movements, black lives matter

Suggested Citation

Hutchinson, Darren Lenard, Undignified: The Supreme Court, Racial Justice, and Dignity Claims (June 1, 2017). Florida Law Review, Vol. 69, No. 1, 2017, University of Florida Levin College of Law Research Paper No. 17-18, Available at SSRN: https://ssrn.com/abstract=2745610 or http://dx.doi.org/10.2139/ssrn.2745610

Darren Lenard Hutchinson (Contact Author)

Emory University School of Law ( email )

1301 Clifton Rd.
Atlanta, GA
United States

HOME PAGE: http://law.emory.edu/faculty/faculty-profiles/hutchinson-darren.html

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