And Grace Will Lead Me Home: The Case for Judicial Race Activism

Barbara Flagg | 4 Alabama Civil Rights and Civil Liberties Law Review 103 (2013)

In many respects we have come a long way since the era of Jim Crow. It is no longer acceptable in most white circles overtly to express sentiments of white supremacy. But whites remain attached to a subtle and culture-borne sense of superiority vis-a-vis people of color. The law, and the judges who interpret and apply it, have played an important role in the construction of race and its social meanings, and they have an equally important part to play in effectuating racial progress. It is the contention of this essay that no principle of judicial restraint is available to justify hesitation in that regard. Part I develops the proposition that a dignitary racial hierarchy persists in America, taking as its point of departure Gunnar Myrdal’s well-known analysis of white Americans’ attitudes regarding race in the 1940s. Part II turns to an examination of what the law might do to combat dignitary racial hierarchy. Part II.A. describes the ways in which race and the law are intertwined, seeking to rebut the possible contention that the public (legal) and private realms are separate with regard to race. Part II.B. examines the ways existing equal protection law sustains white dignitary privilege, and contends that law could avoid doing so. Finally, Part II.C. argues that judges ought to be “activist” on matters of race: there is no case to be made for judicial restraint in this realm. Read more... 

  • See Prof. Flagg’s related article, “In Defense of Race Proportionality,” 69 Ohio State Law Journal 1285 (2008) PDF