Harris "Whiteness as Property", Livia: The Role of the Judiciary

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Within “Whiteness as Property”, Cheryl Harris speaks to the limitations of the United States’ legal system in addressing inequality. In particular, Harris mentions Brown I, which reversed the infamous “separate but equal” concept in Plessy. While this court case aptly rejected white privilege a legal right, it failed to account for “de-facto white privilege not mandated by law” (Harris 1753). Harris explains that one reason the court might not have fully addressed the full spectrum of existing abuses was a fear that the judicial branch would have been too involved within the operations of public schools. She pushes back against this fear, remarking that “it is unacceptable for the Court to ignore the infringement of violation of Constitutionality protected right because of concerns about the proper institutional role of the judiciary” (Harris 1753). Within this blog post, I want to push back against this premise that it was unfair for the judiciary to be cognizant of their role within society.[1]

When we look to the Constitutional text, Article III does not explicitly define the judicial powers of the judicial branch. Simply, it expresses that judicial power should be vested in one Supreme Court and other inferior courts. Further, Article III says that judicial power should extend to all cases arising from the “Constitution, the Laws of the United States, and the Treaties made…under their authority (Constitution of the United States, art.3, sec 2, cl. 1). Within the Constitution, the ambiguity surrounding judicial powers might have made judges wary of the role in getting more involved in the public school system, especially at the State level. Perhaps the judiciary might have felt this responsibility belonged to Congress (maybe through the powers granted to them within Article 1 Section 8, likely through the extension of the commerce clause) or to the States themselves. While the judiciary definitely could have better addressed de facto while privilege not defined by law, it might have been difficult to justify these actions based on Constitutional text.


[1] In my blog post, I address the tension between the judicial branch, and its respective role within American society. However, I also see a tension between federal and state power emerge here. Perhaps, when Harris speaks to the judicial branch and their role, she might conceive part of their fear as an extension of a more forthright fear that the federal government is overreaching into state politics. If so, it’s important to also validate the court’s fear in this respect. Afterall, the Constitution lays out enumerated powers in Article I Section 8 of the Constitution, and the 10th amendment grants all powers not delegated to federal government, to the States. Often, the power over education is conceived as a state power. Thus, if the court attempted to address the full spectrum inequalities, and tried to alter the public-school systems more significantly, they likely would have received even more pushback from the states, grounded in the Constitution text, which could have potentially led to revolt and greater resistance. Though Brown presents a circumstance in which this government overreach is justified, I can understand potential hesitancy from the court.

 


 

Comments

  1. HurleyJanuary 26, 2023 at 10:28 AM

    Cool topic on which to focus. Two interesting issues can be tacked on to the one that you raise. First, if the courts should defer to the legislature, then why does it preempt legislative action by deeming most statutes implementing affirmative action unconstitutional? The court is here blocking legislative action, not deferring to it. The second is a point that Harris makes: Isn't the job of the court just to make a judgment that a law is constitutional or unconstitutional, and if a law is unconstitutional, isn't it void? If so, how can the court only advocate addressing such laws with "all deliberate speed?" Shouldn't they just be invalidated AS laws on this standard understanding? I'm offering these as complementary points to the one you make here.

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  2. Henry LongJanuary 26, 2023 at 11:09 AM

    Is the court advocating to address the laws with "all deliberate speed," or advocating to address the adverse effects of the laws with "all deliberate speed?"

    ReplyDelete

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