Convergence / Politics / Vol. 1 No. 3-4

Marking Time

Nanette Carter Cantilevered2

Image Credit: Nanette Carter, Cantilevered #28 (Teetering), metal, oils, Mylar, 2016, 1′ 5.25″ x 1′ 3.5″

The story of race in America is as much a story about American institutions as it is a story of individual and collective behaviors, beliefs, and ideals. The transformation of party positions on race equality and the development of institutional capacities to track, shape, and make “race” are central to the narrative of race in the United States. Central to the contribution that a focus on institutions in the American racial narrative can make is the way that courts and commentators on courts have understood their role in addressing and ameliorating questions of racial inequality in the United States. An understanding of this discourse allows us, I think, to capture something fundamental about the broader ways that race and American democratic life are conceptualized. Specifically, the brief discussion below is an attempt to understand how the separation of time and space underwrites the ways that law conceptualizes institutional roles and capacities regarding race. Perhaps more importantly, I am concerned with how this practice is fraught with a near-constant aspiration to construct and protect ordinary time from an encroachment by so-called extraordinary events, intrusions, and exertions of authority in the name of racial equality.

Why is the narrative about race and the judiciary so prominent in American political and constitutional discourse? Simply, it is a narrative driven by decisions of the political and judicial branches, and the decisions of social movement activists in response to the institutions that appeared to be the most appropriate sites of reform in the area of American race relations. Specifically, civil rights movement activists remained open to a multi-institutional effort at advancing black interests on many fronts, and turned to the judiciary only as another arena in the battle for black advancement. As such the historical evidence suggests that the federal courts were seen as an institution capable of advancing the interests of the construction of a racially egalitarian political order. This role was certainly not inevitable, as anyone familiar with the demise of the Reconstruction era understands. But the rise of the judicial role aligned with the dominant interest of the political branches—including a Democratic Party that had entered the precarious position of attempting to court northern blacks, while being dominated by Southern segregationists—allows us to appreciate the ecological factors that give rise to particular institutional postures regarding race and the development of American democratic ideals. Political precariousness notwithstanding, litigation in the federal courts served as an important “access point” for civil rights activists, which is comparatively less disadvantageous than competing access points in either the Executive Branch and Congress in the mid-twentieth century.

The reputational reconstruction of federal courts at mid-century was such that in 1958, Martin Luther King’s declared that the federal courts were a place where the Southern Negro “has an honest chance of justice before the law.”1 Clearly, this statement must be understood as a statement about the relative justice available for blacks in federal courts when weighed against that available in southern state courts. The relationship between black southerners and southern state courts exemplifies one of the key issues of what we call “federal courts law”—the role that federal judicial institutions play in ensuring equal treatment before the law. King depicts a systemic failure of state courts—rooted in racial prejudice and a commitment to the state-level monopolization of race policy in the United States—to protect the interests of black residents. King depicts federal courts as sites of justice, which are not beset by the animus that infects southern state political and legal institutions. He also situates this concern in specifically geographical terms—marking space—highlighting the unique dysfunction that bedevils southern institutions in the middle of the twentieth century.

Five years after King, Harvard Law Professor Paul Bator, writing in the context of the United States Supreme Court’s habeas jurisprudence, noted the failure of southern judicial systems to treat blacks as equal before the law. Like King, Bator suggested that the relationship between blacks and the federal courts is premised on this failure. Bator optimistically predicted that the need for remedial principles articulated during an era marked by southern state hostility to black rights was near its end. Also like King, Bator regionalized the problem and temporalized the response. While seemingly sympathetic to the Warren Court’s interventions, Bator paints them as departures from the “ordinary” state of affairs—“revolutionary change.” He called the Court to recognize that normal time would return, and that lasting principles for the relationship of federal and state courts must be articulated with this in mind.2

In 1962, in Baker v. Carr, the Supreme Court reversed an earlier decision and upheld its jurisdictional authority to adjudicate disputes involving state legislative apportionment. Earl Warren later described Baker, which enshrined the principle “one person, one vote” into the constitutional and popular vocabulary, as the most important decision of his tenure as Chief Justice. In dissent, Justice Felix Frankfurter, declared, “It is worth reminding that the problem of legislative apportionment is not one dividing North and South. . . Gross disregard of any assumption that our political system implies even approximation to the notion that individual votes in the various districts within a State should have equal weight is as true, e.g., of California, Illinois, and Ohio as it is of Georgia.”3 Frankfurter’s emphasis that the Court’s reversal was not in the service of the further consolidation of American democracy through the transformation of “backward” southern political institutions suggests that he might have signed on to a departure from the Court’s jurisdictional precedents for the “extraordinary” purpose of correcting the misdeeds of southern states. However, he warned that the Court’s remedy would impact states that fall outside of the scope of the Court’s ordinary circle of “bad actors.” Like King and Bator, Frankfurter exceptionalized the role that the federal courts had come to play as limited to the dramatic project of reintegrating the South into the national political community.

More recently, in Bush v. Gore, Justice Ruth Bader Ginsburg took exception with Chief Justice William Rehnquist’s reliance on Civil Rights-era precedents in overturning the Florida Supreme Court’s decision to continue its manual count of ballots during the 2000 presidential election debacle. Ginsburg declared that the Chief Justice had taken these cases out of their historical context. She wrote: “The Chief Justice’s casual citation of [Civil Rights era cases that empowered federal courts to overturn state court decisions] might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court’s portrayal of state law. . . [T]his case involves nothing close to the recalcitrance by a state high court that warrants extraordinary action by this Court. . . [The Florida Supreme Court] surely should not be bracketed with state high courts of the Jim Crow South.”4 Again, the Jim Crow South occupies near-singular space and time, cordoned off from usable jurisprudential tools and remedies.

In related ways, each of these commentators on the relationship between race and federal judicial authority depict the tools deployed by the federal judiciary in the service of defeating racial inequality in the 20th century as an exceptional dimension of the narrative of federal courts law. To be sure, their characterization of the racial dimension of federal courts law is impacted by their depiction of the problem of racial inequality—at least as understood during the Civil Rights Movement—as limited to the South’s unique form of racial apartheid. However, it is not clear that the analytic boundaries around federal courts laws’ “race cases” rests solely on the geographic boundary around the South as the site of massive state resistance to the demise of de jure racial subordination. The “race cases” are an example of extraordinary assumption of authority by the federal courts in the service of the transformation of American democracy. Understood in this way, the role of the “race cases” in the life of federal courts is sui generis. That is, they are separable from the core of what we take to be the primary canon of federal courts law. And, indeed, separable from the project of governing American democracy in ordinary time.

More recently, the Supreme Court has, again, attempted to separate time in its upending of a half century of voting rights regulation. In Shelby County v. Holder the Court invalidated the Voting Rights Act’s coverage formula, which served as an automatic trigger for imposing the Act’s preclearance requirements on States and other political jurisdictions. The Court held that the 2006 reauthorization of the coverage formula in the Voting Rights Act, which was identical to the coverage formula for the Act’s original enactment, was no longer a reasonable exercise of Congress’ remedial authority under Fifteenth Amendment. The Court concluded that the coverage formula’s continued use was incompatible with the current rates of political participation by racial and ethnic minorities in political jurisdictions whose past practices doomed them to be forever damned to suffer under the burden of the Act’s preclearance requirements, even as non–covered jurisdictions evidenced worse disparities in black-white political participation. The Court noted that the election of Barack Obama, including his victories in southern states like North Carolina, Florida, and Virginia, exemplified the success of the Voting Rights Act’s reforms in allowing for a return to ordinary American democracy, which ought to be marked by ordinary national authority.

One of the more provocative declarations of the Supreme Court’s Shelby decision was its assertion that the South no longer occupied a unique space in American race relations. The majority took great pains to demonstrate the extent to which racial gaps in voter registration and participation were as bad or worse in non-Southern states. Indeed, the Court’s invalidation might be understood as a conservative attempt to highlight Congress’s failure to address racial inequality outside of spaces marked as the “Jim Crow South,” while branding the South as the eternal outlier. What the Court risked demonstrating, rather, was the ordinariness of the racialization of the American democratic project, over 50 years after the passage of the watershed Civil Rights-era legislation. Ironically, the Court is proved correct by efforts in Ohio and Wisconsin to reduce early voting sites and times, and to introduce identification requirements in an effort to eradicate the as-yet unsubstantiated “widespread voter fraud.” These efforts are merely marked as within the domain of a state’s discretion in the exercise of its sovereign authority. This authority was threatened by the extraordinary preclearance regulations that “require[ed] States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own.”5 The outrage visited upon the twice-vanquished South proved too much in the light of events that so clearly marked a national intrusion upon the ordinary affairs of state authority. While the Court is clear not to question the legitimacy of that intrusion in 1965, intrusion it was. The legitimacy of the action was clearly at odds with the ordinary project of American democratic practice, even if that practice included the nearly four generation exclusion of blacks from the body politic. At the first sign of redemption in these jurisdictions, the intrusion would be called out for what it was.

How shall we mark this time? As a brief, if dangerous, flirtation with populist authoritarianism? Such times, we tell ourselves, have visited upon our shores at various points in our nation’s history, even if they have never ascended very high, or lasted very long. Shall we mark it as an unprecedented departure from our political moorings? Its unprecedented nature bringing with it either the dread of more terrible occurrences to come, or the calm of believing that this too shall pass. What we risk missing in so much of this is the vulnerability and strength of American institutions. Despite the belief among many that the current occupant of the Oval Office lacks a sophisticated understanding of the workings of policy processes or inter-branch relational dynamics, he has gone about to transform the function and structure of key institutions—not the least of which is his attempted assertion of monopolistic authority over them. These transformations will not simply disappear when he leaves the White House; we will have been transformed. How shall we mark that? How shall we mark the fundamental ways that American racial politics has been deployed in this era? As some immature outburst before a return to ordinary time, or rather as the deep chord in the American democratic project that appears less an aberration than as the baseline? Indeed, as the way that the chorus of American democracy keeps (and repurposes) time? The ways that we have configured the ordinariness of state sovereignty at the service of racial authoritarianism, or legitimized state efforts to eradicate racialized state exclusion as mere extraordinary intrusions that will not restructure our fundamental DNA, suggest something about the limits of law’s capacity to assist in this current moment of democratic threat.

1 Martin Luther King, Jr, Stride Toward Freedom (1958).
2 Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. (1963), esp. 524.
3 Baker v. Carr, 369 U.S. 186, 261 (1962) (Frankfurter, J., dissenting).
4 Bush v. Gore, 531 U.S. 98, 140 (200) (Ginsburg, J., dissenting).
5 Shelby County v. Holder, 570 U.S. 529, 530 (2013).

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