The sliding glass patio door of my fifth-floor apartment is open. It is late morning on the Saturday before my Jurisprudence exam, and I am desperately trying to pin myself down. We’ve had the whole semester to gnaw at these issues – at this framework. Surely, there has been adequate time to generate some feelings on the material. I told you about my open patio door, because just a moment ago, I heard a car crash. I hope the people involved are ok. My apartment building is close to the freeway which sadly means that hearing a car accident is common. I may have gotten used to it. Is my attitude toward race (and other “minority group” ex: women, LGBTQ+, immigrant) relations in America like my relationship with the people involved in today’s car accident? Concerned, but ultimately distant?
I would like to think that I went into Jurisprudence with an open mind. After all, what the hell did I know about Jurisprudence? Sure, you are exposed to interesting concepts as you trudge through law school, but you don’t know what you don’t know. You don’t know how to see through a Supreme Court opinion until you are given the x-ray glasses – and you don’t know how to see how a Supreme Court opinion affects a particular group of people until you are given the appropriate “community specific” filter on those x-ray glasses. Stay with me. What I’m telling you is, I hardly knew what to expect going into Jurisprudence. I suppose I held some vague notion that the course would attempt to categorize and explain different types of judicial reasoning, but I had no idea that this Jurisprudence class (as opposed to most Jurisprudence classes at other law schools) was going to focus squarely on critical race theory.
Once I found out, I would like to think I was all ears. There were about forty students in the class. At thirty-two (my birthday was just a few weeks ago) I am quite certain I was the oldest student in class. I am not sure if I was the only student with job experience, but I believe I was the only student who is currently working while in law school. Indulge me on this brief tangent about my work experience, for it will make sense by the time you reach the end of this article. For the last nine years, I have worked a construction job for a real estate developer. We build apartments. As the general contractor, we technically do not have a scope of work. Each task is subcontracted out, and so our job is purely to manage the subcontractors. So why then do we employ a team of skilled laborers to pick up all the slack? For years this rubbed me the wrong way. It isn’t right. We don’t have a scope of work. If there is a problem, it’s because one of the subcontractors are not doing their job.
Back to Jurisprudence. At the beginning of the course, you get exposed to the concept of equity. Equity is not a new concept; it has been around since the time of the ancient Greeks and saw continued use in Rome and then England. So, what is it? Equity is the recognition that instances will arise in which the strict application of law will lead to an unjust result. Equity is the spirit behind the law which permits judges to, in certain occasions, deviate from the law to achieve justice. It is said that there are two types of equity – corrective and interpretive. Think of the former as giving a judge the power to assert her values onto the nation and the latter as giving her the power to tap into the pre-existing values of the nation to update the law. The takeaway when it comes to equity is that Alexander Hamilton prevailed over Thomas Jefferson, and Section Two of Article Three of the Constitution bestows equitable powers upon the court.
There is no disputing that Supreme Court Justices have law in one hand and equity in the other. Jefferson feared giving the Court equitable powers would, in conjunction with the necessary and proper clause of the constitution, be used to expand the power of the federal government. Hamilton, like Aristotle, viewed equity as the exception to law – as a flexibility device to be used on behalf of justice. In his profound book, Structures of Judicial Decision Making from Legal Formalism to Critical Process, Professor Roy L. Brooks gets you to realize that equitable powers exist, and that the only relevant question when it comes to those equitable powers is, “what is the proper mix of law and equity?” In modern times, we use the word “policy” to capture the concern for consequences and compassion of equity. All this information, and this language, comes directly from his book. One of the most important lines from the book is, “too much policy kills law – too much law kills justice.”
With the concept of equity in our back pocket, we can now breeze through a summary of traditional jurisprudence. There are two basic approaches to judicial decision making: the logical method and the policy method. According to the logical method, the perfect judge is an algorithm. Law is, or should be, a series of gapless rules, and they should be mechanically applied. Values, whether they belong to some community or the judge herself, are totally irrelevant to a judge’s job. In contrast, according to the policy method, law is based on experience rather than rigid rules. Therefore, an algorithm could never be sufficient to achieve justice. The bottom line with traditional jurisprudence associated with the logical method, whether you are talking about legal formalism or Scalian textualism, is that it is not as policy-free as some of its proponents would like you to believe.
In the book, professor makes it clear that the logical method slants towards a minimalist government rather than being policy-free. The legal rules associated with legal formalism, such as vested property rights, substantive due process, and liberty of contract, might seem at first glance to be neutral values, but represent the notion that Justices think the federal government should be weak compared to property owners. Scalian textualism is the fidelity to interpreting statutes according to their words ordinary reasonable meaning and to interpreting constitutional provisions according to the framer’s intent. This latter component, dubbed “originalism,” also slants towards a minimalist government. Originalism means change is bad. The deal struck at the founding of our country was that the federal government would be strong enough to exist but not so strong that it could impose – especially from the judiciary alone – welfare liberalism, or new rights of any kind, on society.
After exposing the logical method’s lie, the book turns to the policy method. Enter the discussion about legal realism and legal process. Legal realism is the idea that Justices should have the power to make policy. The legal realist is all-in on welfare liberalism, which is simply the idea that the government should help the downtrodden. Call it “maximalist” government. Legal realists view the law not as a body of rules but a set of facts that give rise to competing policy choices. This is all straight from the book. According to legal realism, the Court can make policy (impose the Court’s values on the nation) in the common law setting. In contrast, in the written law setting, whether statutory or constitutional, the Court can only discover (promote unarticulated public policies) or vindicate (promote articulated public policies.)
Next, we have legal process. The main idea here is, “reasoned elaboration from existing arrangements.” Right off the bat, policy making (imposing the court’s values on society) is never allowed. In the common law setting, policy discovery (promoting unarticulated public policies) and policy vindication (promoting articulated public policies) are valid. Legal process calls for policy vindication in statutory cases where the judge must figure out which of several potentially applicable statutes to apply. However, in a spurious statutory case – one in which the applicable language is clear, but the result is absurd – legal realism calls for policy discovery (Scalia would let the absurd result play-out.) Constitutional cases should be decided in the public interest. All of this is grounded in reasonable elaboration of existing arrangements, which gives the legal realist holding its democratic legitimacy.
Do you now see why a judge who follows the logical method and a judge who follows the policy method would, given the same set of facts, write a very different opinion for different reasons? Now that you do, we can start talking about critical race theory. Critical race theory is the idea that society is racist. The laws might be neutral on their face, but they are sure as hell discriminatory in effect. Critical race theory identifies the problem, but critical process (notice the play on legal process) proposes the solution. Critical process comes along and says, “ok, we like all that reasoned elaboration from existing arrangements business, but whose existing arrangements are you validating?” The answer, of course, is straight white males. The critical process judge reformulates the central tenant of legal process in a simple but profound way. The critical process judge discovers, vindicates, or even makes policy, based on reasoned elaboration from existing outsider arrangements.
The word “outsider” matters. The criticalist judge believes that to do justice, to achieve equity, she must include the perspective of traditionally marginalized groups in her reasoning. This is the only way to make the outsiders insiders. This is accomplished by asking the subordination question in every case. The subordination question asks, “does the issue/arrangement before me negatively impact outsiders and maintain insider privilege? Within the subordination question there are the concepts of deconstruction and reconstruction. The deconstructive part of the Justice’s opinion explains why the law is or is not oppressive, and the reconstruction part provides the fix if needed. There are three models of critical process: symmetrical, asymmetrical, and hybrid. The differences are very important.
The symmetrical branch of critical process is concerned with whether the matter is explicitly insider-outsider conscious. In other words, does the law explicitly classify outsiders or fail to validate neutrality? Whereas the symmetrical criticalist finds subordination in the absence of facial neutrality, the asymmetrical and hybrid criticalist find subordination where the law adversely effects outsider groups and advantages insiders. The difference between the asymmetrical criticalist and the hybrid criticalist is merely that the former will reconstruct by proscribing race conscious rules, such as affirmative action, while the latter will not. The hybrid model does not want to “taint” outsiders with preferential treatment. Therefore, the hybrid criticalist would reconstruct by fashioning a legal rule that is socially transformative but accessible to both insiders and outsiders.
Why do people get so worked up when they hear the phrase, “critical race theory?” I believe the answer is because the theory implies structural racism and a level of unconscious bias that many white people are uncomfortable acknowledging. I still have a hard time accepting that modern day America is structurally racist. But now we are back to the point about my patio door being open. I can hear the car accident, but it’s not happening to me. I will keep this in mind as I move forward in life. As for the debate about law and equity, it’s clear the only question is, “what is the proper mix?” For anyone tempted by the purely logical method of judicial decision making, I will leave you with this question: if my company hires a subcontractor to perform every task, why the hell do we have a team of skilled laborers to fill in the cracks? As I wrote earlier, this rubbed me the wrong way for several years until I realized that life is not always so black and white.