Title

When Hope Lies with the Courage of a Cowardly Lion: Social Science, Race, and Judicial Political Affiliation in Contemporary Race Conscious Admissions Cases

Abstract

This paper employs the critical race theoretical frame of the price of racial remedies, using statistical analysis to document the influence of judicial political affiliation in the outcomes of contemporary race conscious admissions cases. The analyses employed support the conclusion that the outcomes of these cases rest on the political affiliations of the judges, confirming the terse Critical Legal Studies (CLS) critique that “its all political”. Going beyond the CLS critique and centering my work in critical race theory, I ground my findings in Derrick Bell’s price of racial remedies framework. What is most interesting here is that in the aggregate, the rule of judges in the arena of race conscious admissions run contrary to the Hamiltonian ideal of the courts as protectors of “minority” rights. While this finding is truer with respect to Republican judicial appointees, the support of “minority” rights by Democratic-appointees is noticeably less intense than Republican-support of majoritarian interests. This stands to reason as the hope of the continuation of affirmative action policies rest with the courage of cowardly lions: judges wedded to liberal formalistic inquiry, adjudicating a part from past, present, and future realities. Within the price of racial remedies framework Bell argues that Whites, even liberals, are not willing to surrender privilege and property interests without a trade a points that are pareto optimal for Whites.

Disciplines

Civil Rights and Discrimination | Education Law | Judges | Public Law and Legal Theory

Date of this Version

March 2006