Animus and Its Distortion of the Past

Abstract

Do legal concepts alter how we understand the past and present? The jurisprudence of race suggests that they do. For several decades, federal courts have distorted America’s racial history by relying on a misleading legal conception of discrimination. The concept of animus has helped courts recharacterize U.S. racial discrimination as having occurred long ago, inflicting distant harms that have long since been cured or simply dissipated. Based on such depictions, courts have increasingly rejected government attempts to use race-based measures to redress past discrimination.

In this Essay, I argue that a long-term movement opposing remedies for racial inequality has culminated in the present moment of near-absurdity—when Jim Crow itself is not sufficiently cognizable as “discrimination” to warrant repair. That movement against remedies is deeply intertwined with courts’ embrace of the concept of “animus,” which restricts the forms of harm that the courts will recognize as illegitimate discrimination. Animus doctrine has helped courts render past discrimination invisible, irrelevant, and unrecognizable. In doing so, the doctrine makes it extremely difficult, if not impossible, to remedy the core wrongs of America’s past. While animus doctrine in recent decades has played a positive role in bringing about victories for the LGBTQ community and people with disabilities, I argue that the concept itself is a risky, unreliable foundation for lasting gains. The hunt for animus may easily distract from and undermine deeper social reform.

Keywords: Race, discrimination, remedies, equal protection