Work in progress:

“FREEDOM IS NOT ENOUGH”: The United States Supreme Court and Racial Inequality Since 1970 (submitted to Oxford University Press)

As my most recent book, The Dark Past: The US Supreme Court and African Americans, 1800-2015 (2024), was making its way through the editorial process at Oxford University Press, the editors requested a more succinct version more suitable for use in undergraduate, graduate, and professional classes.  (Dark Past is 500 pp. long, with 83 pp. of footnotes.) Oxford has plenty of experience with this sort of thing.   The most persuasive example is the revision of Michael Klarman’s From Jim Crow to Civil Rights to its condensed rewrite, Brown v. Board of Education and the Civil Rights Movement.  “Freedom Is Not Enough” is the response to the editors’ request.  Roughly speaking, it begins with a brief synopsis of the first half of Dark Past, followed by a rewritten version of the remainder of that origin book, in tone and composition more suited to the needs of students in a classroom setting.  It concludes with an entirely new chapter on criminal law and punishment and a revised overview of the parent book’s theses.  I drew upon my half-century-plus of teaching experience (seventeen years in undergraduate and graduate classes, followed by more than forty years in law schools) to write a book that would be useful to historians, political science faculty, social scientists, and lawyers in passing on the twinned heritage of the American constitution and American struggles for racial justice to the next generations of lawyers and citizens.

          Because “Freedom Is Not Enough” remains faithful to the narrative of Dark Past, I will incorporate by reference the abstract of the parent book to convey the principal ideas and structure of both books.  Here I will discuss the innovations the offspring book offers.  There are two: America’s anomalous outlier status as a uniquely carceral state, and the elusive place of racism in a nation that has been trying for most of a century to overcome the poisoned legacy of slavery. I regretted the omission of criminal law and incarceration in the original, necessitated by the already-too-long content of a scholarly book that will probably attract something smaller than a trade readership. The timeliness and urgency of the subject matter may not overcome the challenge of discussing an inherently recondite subject (law) to readers encountering it for the first time.  But it is the proverbial elephant in the room, too big to ignore.  “Freedom Is Not Enough” fills that gap by reviewing the historical development of White control of Black freedom through law’s harshest weapon, the law of crimes.

          The last point, the review of Dark Past’s theses, is a more extended attempt than was possible in Dark Past to embed an understanding of structural racism into an American legal mentality seemingly determined to ignore or suppress it.  The way that law deals with this current avatar of racism will determine not just the future of race relations but the viability of the republic itself, founded as it is on the ideal of equality among all people.

STRUCTURAL RACISM AND THE SUPREME COURT (with Judy L. Hamilton) (forthcoming)

For over a half century, social scientists have produced a compelling body of literature that explains why severe racial disparities persist throughout American society in all social domains: employment, education, housing and residential segregation, wealth accumulation, and so on. Sociologists call this phenomenon ‘structural racism.’  Structural racism perpetuates racial disparities because it does its work through organizational practices and social policies that are not easily visible.  Understanding structural racism requires us to focus on social structures instead of the intentions of bigoted individuals. 

          In this book, we link the disciplines of sociology and constitutional history to demonstrate that since 1964, the United States Supreme Court has refused to recognize the reality of structural racism.  Instead, the Court has developed legal doctrines that protect this hidden form of racism, assure its continuation, and disable other branches of the federal, state, and municipal governments from eradicating it.  The Court’s willful blindness about race ignores the reality of structural racism and instead embeds the Justices’ unacknowledged racial policy preferences into constitutional law.  Their doctrinal assumptions about intent, colorblindness, facial neutrality, and white innocence enable them not just to ignore structural racism, but to affirm it.

We review social science literature to provide examples of structural racism in the social domains of (1) employment, (2) housing, and (3) education. In intervening chapters, we demonstrate how Supreme Court constitutional decisions regarding employment, housing, and education map onto this template of structural racism.  We show that the anti-classification understanding of equal protection embraced by the current Supreme Court is merely the judicial formulation of colorblindness, which is itself a key component of structural racism.  The Court’s concern for white innocence reaffirms white advantage and white normativity.

            The Court has ignored a half-century of substantial research in the social sciences, and instead has clung to outdated assumptions that perpetuate racial inequality.  Yet at the same time, the Court draws on racialized assumptions about social structures in ways that, perhaps inadvertently, protect white advantage.

Not Just Freedom: The U.S. Supreme Court and Racial Inequality

Racial inequality is an enduring characteristic of American society, and has been since 1619 when English slavers sold some twenty captive Africans to early Virginia colonists. Over the four centuries since then, the workings of that inequality have evolved, but the underlying fundamental has remained the same: White over Black. [1] Understanding inequality is essential for eliminating the racial injustice that has betrayed the promise of America contained in the Declaration of Independence: “all men [and women] are created equal” and are “endowed [with] liberty.” The United States Supreme Court has a role to play in bringing that about, but sadly it has usually failed in its noble mission. It is on the verge of failing again now in a way that may take decades to correct. This book has been written in the hope of forestalling that failure.

The dominant form of racial inequality in America today is produced by structural racism. Unlike times past, modern racial inequality is not created by overt racism imposed by law, as it was in the era of slavery. Rather, it pervades American society through the ordinary day-to-day functioning of institutions and practices that on their face seem to have nothing to do with race, much less with malicious racial states of mind that constitute the traditional forms of intent-based racism. Can courts confront this insidious form of racism, and should they? A major U.S. Supreme Court precedent, Washington v. Davis (1976), answers that question No. This book explains why the Court erred in that case a half-century ago, and traces the pernicious consequences of its error. It warns about the danger posed by unconstrained ideas of judicial supremacy and suggests ways that the Court may extricate itself from its self-inflicted wounds. Washington v. Davis, given a worst-case reading, threatens the future of civil rights litigation seeking to eliminate racial injustice. It could further empower a Supreme Court that has demonstrated its eagerness to roll back gains of the past. The Davis case poses the question: who has the final word in interpreting the Constitution, Congress representing the American people, or the Supreme Court?

Chapter 2, “Hope Unborn,” provides a brief recapitulation of the story told in the book that is its origin: Wiecek, The Dark Past: The U.S. Supreme Court and African Americans, 1800-2015 (2024). [2] That book relates the history of the Supreme Court’s handling of all major cases coming before it that affected the status and rights of Black Americans. It demonstrates that there is little basis for hoping that the Court can be relied on to protect those rights.

Chapter 3, “The Struggle for Equality Today,” discusses the major themes of “Not Just Freedom.” These comprise:

• three eras of racial inequality in America’s past;

• the state of racial (in)equality today;

• structural racism as an insidious form of suppressing the aspirations of Black people;

• the conservative interpretation of the Reconstruction Amendments; and

• the succession of the evermore conservative Burger, Rehnquist, and Roberts Courts, ending up with the stultifying supermajority of the present.

Chapter 4 is the heart of the book. It presents the two cases that structure the problem: Griggs v. Duke Power Co. (1971), which emphasized the significance of one half of the Davis binary, disparate impact, and Washington v. Davis (1976), which elevated the other, discriminatory intent. It introduces the constitutional significance and potential of the binary.

The remaining chapters, 5, 6, and 7, trace the impact of the Davis discriminatory intent doctrine in three successive social domains: education, employment, and residential segregation. In each area, the Court’s mandate of discriminatory intent dictates outcomes that regularly privilege White primacy and subordinate African Americans’ opportunities.