As a Breitbart-Approved Expert, Breitbart is Full of Shit

One of the Breitbart flunkies has decreed that I am an officially approved Derrick Bell expert, and that in order for the "controversy" regarding Derrick Bell and Critical Race Theory to abate, folks need to hear me weigh in.

Hey, anything for Breitbart. Ready? The claims Breitbart's site is making about Bell and Obama are entirely wrong, and betray a fundamental misunderstanding not just of critical race theory, but of massive swaths of literature on the judiciary.

Now, the pattern of Breitbart's attacks is hard to discern -- it seems to be just throwing up random arguments Bell has made over the course of his career, punctuated by scary adjectives. So, for example, my expertise is demonstrated via my 2006 description of Bell's interest-convergence theory, which holds, in essence, that civil rights advances occur when they are in the interest of Whites. In terms of Brown v. Board, the interest was maintaining our diplomatic edge in the Cold War, which caused the Eisenhower administration to intervene on the side of the NAACP (the Soviets had been using Jim Crow abuses as a cudgel against the US in their diplomatic efforts to curry favor in the Third World).

As I noted in my post, subsequent historians have verified that Bell's argument here is perfectly accurate (the key book is Cold War Civil Rights, by USC legal historian Mary Dudziak), and I'm not sure why the claim should be seen as controversial. I mean, I suppose it dispenses with the notion that civil rights advances were done because White people collectively saw the light, but so what? Obviously the truth should be an absolute defense anyway, but to the extent Bell is arguing simply that people act in their self-interest, he's observing nothing more controversial than the building block of capitalism, law & economics, and the Federalist Papers ("if men were angels ..."). If anything, Bell's argument is fundamentally conservative -- it's not about fuzzy notions of "justice" and "doing the right thing", it's about hard-headed analysis of the national interest.

In any event, despite linking to me on this point, this doesn't form the core of their objection to Professor Bell. Rather, they take issue with his general disdain for using courts as methods of social change. Well -- sort of, and here is where they seem to fall wildly off the rails. This column attempts to claim that Barack Obama wished the Warren Court had been "more radical", a sentiment he allegedly shares with Bell. It is almost impossible to count the ways this is wrong -- it manages to get Obama's position wrong, Bell's position wrong, as well as misattributing the actual position in question as emblematic of "critical race theory", when it has a much broader reach than that.

The quotes they give from Obama make the relatively unremarkable assertion that, for all the Warren Court's supposed "radicalism", it actually was surprisingly modest in its reach. It did not attempt wide-ranging socio-economic reform (typically seen as beyond the reach of the judiciary). It focused on enforcing negative rights -- freedom from governmental coercion -- which is well within the classic wheelhouse of the judiciary. And he goes on to say that social movements who adopted a "courts-focused" strategy made a terrible mistake, because they expended resources in a forum that would not and likely could not actually grant them the victories they desired. And Bell is mostly in agreement here -- his experiences as a litigator for the NAACP convinced him that a judicial strategy was sharply limited in what it would be able to accomplish for everyday Blacks.

What's wrong is the extension Breitbart asserts over and over is "clear" -- that Obama (and Bell) wish the Court would have taken on this role. That claim, alas, is "clearly" wrong. Most mainstream legal theorists don't think the Court is legitimately in the business of guaranteeing positive rights -- it would be illegitimate for them to make such guarantees part of their jurisprudence. This holds true even if one thinks that some positive guarantees should exist. So, for example, I might think that we should have a minimum wage (I do), but not believe the Courts should mandate one as a matter of constitutional law. This is not a particularly complicated concept -- it simply holds that there is a difference between one's political commitments and what one thinks is the legitimate province of the courts -- a staple of conservative constitutional principles, incidentally. That's half of Obama's point (I'll get to the latter half in a second) -- that the judiciary is properly constrained by certain essential principles, that the Warren Court did not break free of those constraints but rather stayed well within them, and that thus nothing it did should be seen as particularly out of the mainstream. To the extent liberals wanted to see change of the sort not properly engineered by the courts, they should have focused on social elements that are legitimately tasked with those projects (such as legislatures).

That's a legitimacy point -- that the Courts are not properly tasked with certain social agenda items, even if it would be a good thing for society if they were accomplished in some other way -- and it is perfectly mainstream. Does Bell agree? It's unclear, since Bell is more focused on the second half of the equation -- legitimate or not, are courts institutionally capable of accomplishing widespread social reform? Bell's answer here -- mediated by his time as a frontline NAACP attorney during the civil rights revolution -- is a resounding no. If what one wants is widespread social reform, going through the courts is a bad idea. It doesn't matter whether courts ought to do it or not, in fact, it doesn't matter whether courts want to do it or not. They are structurally incapable of accomplishing significant social reform. Reformers should focus their attention on other, more effective means of attaining their desired ends -- like community organizing, like lobbying elected branches.

Is this a CRT position? To some extent, yes, but it's hardly restricted to them. Probably the most well-known defense of this stance came in Gerald Rosenberg's The Hollow Hope. Rosenberg is not part of the Critical Race Theory movement (he's also a White dude, so Breitbart readers can trust him), but his book is the go-to citation for the claim that courts can't bring about social change on their own. Brown, he argues (and backs up with a mountain of data), was relatively meaningless -- desegregation didn't begin in earnest until Congress passed the Civil Rights Act, and desegregation ceased as soon as the political costs began to outweigh the benefits. Rosenberg is quite clear that the problem was not a lack of effort by the judiciary. Rather, it is structural weaknesses present in the judicial branch -- for example, lack of control over budget and enforcement, lack of resources and expertise to oversee complicated remedial plans, and constitutional inability (due to standing rules in Article III) to be proactive in face of popular resistance. To say the problem is that Courts "aren't radical enough" is to wildly miss the point -- the problem is that people think the Courts are even capable of effectuating this sort of change. Bell absolutely concurs with this argument -- adding other reasons for judicial incapacity as well -- but the position itself is not unique to Crits. It is a mainstay of the entire American Courts subfield of political science and law.

And again, why should this position -- that social movements shouldn't rely on the judiciary to achieve their ends -- even be controversial? The irony is that these positions are fundamentally conservative ones. The right-wing has always complained that liberals want courts to engage in social engineering beyond their institutional capacity, in ways that supersede the will of the people as expressed through democratic branches. But Bell's beliefs are entirely consistent with this critique -- he agrees that one shouldn't use courts as primary engines of reform, and that one should instead look to more localized methods of achieving ones ends. The obsession liberals have with the courts, Bell and Obama both hold, is counterproductive -- it accords the courts far more power than they either ought to have or are capable of effectively wielding.

The final area of Bell's writing that might be controversial is his belief that the American corpus of law maintains and perpetuates racism and White supremacy. This would be something thing is distinctively CRT. It also has no link to President Obama, who is notable for the rarity with which he approaches policy through the lens of race or racial equality. And that, more than anything, is why Dorothy Brown was clearly right in saying Obama doesn't even have a "vapor" of CRT. CRT approaches problems of law primarily through how they affect questions of race, and their general answer is "American law perpetuates racism". As Obama doesn't really focus on race in American life at all, it is bizarre to label him as particularly CRT-oriented.

Should the idea that racism is ingrained in American law be controversial? I guess it's inevitable. But the argument isn't hard to make. The starting point is that racism is normal in American society. That's an empirical argument resolvable by empirical research -- people can chest-thump all they want about how outrageous it is to assert that racism is common-place in America, but the fact remains that racism is something we can measure, and the measurements indicate it still is very prevalent (see, e.g., here (applicants with Black-sounding names fare considerably worse than Whites with identical qualifications), here (holding credentials constant, Blacks on the job market fare worse than Whites with criminal records), and here (knowledge of a seller's race causes buyers to offer reduced prices for goods of identical quality sold by Black merchants)).

But since the law (incorrectly) assumes racism is aberrational, it generally maintains a stance of neutrality -- it doesn't talk about race, and generally just upholds the (still racially biased) status quo. Moreover, since the law's presumption is that it should not delve into racial matters, what efforts do exist to remedy that still-extant racial inequality are greeted with significant suspicion by the courts -- leading to, for example, the Court finding that voluntary desegregation of public schools is an unconstitutional violation of the 14th Amendment. Given these twin arguments (1) that society remains racist and (2) that the dominant legal structures are geared to prevent significant shifts along the axis of race, the conclusion that the law acts to perpetuate racism is perfectly plausible.

It's worth one final point here -- note that these problems of racism (e.g., that Black sellers receive less than White sellers, all else equal) are not problems that seem amenable to judicial resolution. How exactly would a seller bring a claim to remedy this racial disparity? It's unclear, and for a court to try and solve this problem would likely be futile and would probably constitute overreach. So if we think that disparity is bad, our remedy should not come from the courts but from elsewhere. But that observation -- that social reform should come from institution more democratically accountable than the federal judiciary -- is not something that distinguishes Crits from mainstream Americans. If anything, it is something that seemingly unites across political borders.

So to conclude:

(1) Many of the arguments under dispute here simply aren't (or shouldn't be) that controversial. Interest-convergence is simply a historical point regarding what causes major civil rights shifts, and the particular claim about Brown has been verified by subsequent historical literature. The idea that people should not look to the courts as the primary engineers of social reform is (a) mainstream, if not conservative, and (b) hardly the exclusive province of critical race theorists.

(2) The claim that Obama and Bell want a "more radical" judiciary is almost comically false in its misreading of the argument. The claim Bell, like Rosenberg and Obama, make is that the judiciary is a terrible locus point for social movement efforts, and that it was a massive tactical mistake to focus on the courts as opposed to other avenues for reform. Their argument is fundamentally a critique of those who were saying "if only the courts were willing to do more, we'd be in the promised land".

(3) The distinctively "CRT" elements of CRT are the focus on race as the point of the analysis for American law, with Bell concluding that the law entrenches and reifies racial hierarchy in America. Obama can't be said to operate from this lens, since Obama almost never talks about or focuses on the law's effect on race and racial relations -- putting him in a polar opposite position from the CRTers. As for the merits of Bell's position itself, it's perfectly plausible. American legal doctrine as stands generally views the racial status quo as adequate and works to maintain it -- unwilling to tolerate significant efforts to make it either more or less racist. But if the baseline is already one of White supremacy -- if racism is the default setting (an empirical question) -- then this "neutrality" perpetuates and protects a racist status quo. This is "radical" in the sense of challenging fundamental assumptions about American law, but it's hardly something that should be beyond the pale for academics to explore.

UPDATE: The one thing left is this question about whether CRT is "about White supremacy". "About" is ambiguous language -- it can mean "related to" ("this class is about physics") or it can mean "exemplifying" ("I'm all about authenticity"), and I think that's where the confusion lies. Pollak cast CRT as being the antithesis of Martin Luther King, instead being "about White supremacy". That is more of the "exemplifying" reading (the opposite of being MLK is supporting White supremacy), and that sounds like what Brown and O'Brien were responding to (obviously, CRT is not about supporting or maintaining White supremacy). Does Critical Race Theory talks about racism and White supremacy? Of course it does. Does it support White supremacy and racism? Obviously not.

Now which way to Pollak mean it? It's hard to say, as he was kind of rambling, which is how these sorts of miscommunications happen. If anything, it seems like he doesn't mean anything in particular, instead relying on the emotive punch of the phrase "White supremacy" (specifically, his belief that it will rile up White ressentiment which is tired of being supposedly blamed for the existence of racism and sees all discourse about racial inequity as "playing the race card") absent any content whatsoever. This is the political cleverness of this gambit -- it's not about particular arguments. It's simply a belief that any discussion about racism is a discussion Republicans are winning, because it appeals to a sense of siege and victimization by the GOP's White base.

Weekend Roundup

I have been dialed in these past few weeks, and the blogging has suffered, I know. Not sure if things will pick-up or not in the upcoming days.

* * *

Rick Santorum lets the economic cat out of the bag -- if it improves, Republicans suffer.

Republicans try, fail, to lift a consent decree barring them from voter suppression.

Sarah Palin says Obama pines for pre-Civil War America. I have to say, anytime someone says "obviously, even the most hardened conservative wouldn't say such-and-such", I immediately have very little trouble envisioning a conservative saying it.

My job is awesome. But lots of jobs stink.

Jon Chait postulates that "Bellgate" is just an instantiation of Jewish Republicans wild tendency to see Black anti-Semitism in every corner.

Bell and Obama

Despite calls from my adoring fan base, I do not plan on providing a lengthy defense of Derrick Bell in the wake of the "revelation" that Barack Obama hugged him. The simple reason is that I don't have the energy to respond to the GOP faux-scandal d'jour, and it feels like only yesterday that I wrote Bell's obituary. Bell's status as a warrior for racial justice, and one of the most important writers on race relations in America should be beyond question, and I'd rather just make believe that we're not so stunted as a society that we can be deluded into thinking Bell is the bad guy in our anti-racism saga.

RIP Derrick Bell

Derrick Bell -- civil rights warrior, pathbreaking law professor, founder of critical race theory, and tireless advocate for justice, has passed away at age 80.

I never met Derrick Bell. I had the opportunity once when he came to speak at Carleton, but I was going out of town. I remember pulling aside my roommate -- a Math major with zero interest in politics, law, race, or anything primarily expressed via words -- handing him my copy of And We Are Not Saved, and informing him that he was going to Professor Bell's talk and he was getting my book autographed. Which my (quite saintly) roommate proceeded to do, and I still have that book on my desk to this day.

Bell was a model to generations of students. He accomplished more in one lifetime than the average person could hope to do in three. I was introduced to him as an academic writer -- progenitor of "interest-convergence theory" and CRT founder -- but it is worth remembering that academia was really Bell's second career. He started off as an in-the-trenches warrior in the fight for civil rights, leading the NAACP in dozens of successful anti-segregation suits in the Jim Crow south. After a brief stint at the University of Southern California, Bell became the first tenured Black professor at Harvard. He eventually left Harvard in protest of their failure to hire a Black woman. The claim, as always, was that they couldn't find a "qualified" one. How they said that with a straight face to Bell -- who graduated from the decidedly non-elite University of Pittsburgh law school and proceeded to become one of the most influential scholars of the last quarter century -- is beyond me.

Rest in peace, professor. Be assured that your legacy lives on.

Quote of the Evening

From Derrick Bell, Silent Covenants: Brown v. Board and the Unfulfilled Hopes for Racial Reform (Oxford UP, 2004):

J. Harvie Wilkinson III, now a federal judge but writing as a University of Virginia professor two decades after Brown, offered practical details of why Brown II was a mistake. Brown II, he felt, left federal judges far too exposed; it "gave trial judges little to wrap in or hide behind. The enormous discretion of the trial judge in interpreting such language as 'all deliberate speed' and 'prompt and reasonable start' made his personal role painfully obvious." The judge who, in trying to enforce Brown, did more than the bare minimum, would be held unpleasantly accountable by the active, vocal, and powerful opposition that surrounded him. Wilkinson explained:

Segregationists were always able to point to more indulgent judges elsewhere. Brown II thus resembled nothing more than an order for the infantry to assault segregation without prospect of air or artillery support. That some of the infantry lacked enthusiasm for the cause only made matters worse.... Given the vague and sparse character of Brown II and the Court's low profile thereafter, stagnation was inevitable.

The Wilkinson block quote is from J. Harvie Wilkinson III, The Supreme Court * Southern School Desegregation, 1955 - 1970: A History and Analysis, 64 Va. L. Rev. 485, 507 (1978).

And my schizophrenic relationship with Judge Wilkinson continues.

Radical Review Part One: What Causes Civil Rights Progress?

If there is anything I've learned over the past few days, it's that most people have a weak grasp -- if any -- on the actual arguments being made by non-mainstream theorists and philosophers. This, of course, doesn't stop them from making bold claims about what "liberals say" (or whatever). And that, in turn, infuriates me, and I occasionally flip out. It's particularly bad when folks act as if they don't need to know a group's actual argument and analysis in order to wax lyrical about how awful it is.

Hence, the "Radical Review." It's what it sounds like: I'll review the actual arguments of relatively out of the mainstream thinkers (generally on race) on a particular question or issue that seems to stick in the craw of the mainstream. By and large I am not offering my own opinion here -- just laying out the argument in a (hopefully) accessible, unprejudiced, and informed manner.

Today's issue can be summarized as follows: If America is "structurally racist", what explains civil rights progress over the past 60 years or so?

Excellent question! Radical writers on race have several hypotheses on what might be the cause of racial reform. But before we get into them, it's important to note that few would describe America's racial history as a straight forward progression. We have advances, but we also have relapses. Many would argue that, while things are better today than in 1958, they might be worse along some axes than in 1978. The legal protection afforded to race and commitment to overthrowing racial hierarchy, for example, has been beating a steady retreat for the past several decades. Some writers, such as Kimberle Williams Crenshaw, would say that we are in a period of "retrenchment", during which racist structure rearticulates and reestablishes itself in the wake of liberal attacks. Furthermore, whatever progress has been made has come from a pretty high baseline. Insofar as momentum has stalled today, it has done so well prior to where we could say that systematic racial disadvantage has been rendered a thing of the past.

That having been said, few would deny that important strides were made in the 1960s and the civil rights movement. What caused this?

Perhaps the most important radical theory on this topic is Derrick Bell's "interest-convergence" theory. Interest-convergence holds that Whites only accede to Black civil rights demands when it is in their interest to do so. Brown v. Board, for example, was not a case of White people just "coming to their senses" finally. Rather, it was a direct response to Cold War pressures -- the U.S. was being killed in its diplomatic efforts to sway the non-aligned states by our well-publicized segregation and discrimination. The State Department was receiving a flurry of screaming memos from our foreign ambassadors to this effect, and that prompted the U.S. Federal Government to intervene on behalf of a civil rights plaintiff for the first time. In her book Cold War Civil Rights, legal historian Mary Dudziak did the historical legwork and found that Bell's hypothesis was largely accurate, in that Cold War pressures did seem to play a significant role in convincing the American government to reconsider its racist policies.

However, several authors, such as Paul Finkelman and Rachel D. Godsil have identified several cases and actions where White actors seemed to protect Black civil rights when no immediate benefit was to be had. To this, Bell would respond that these constitute "contradiction closing cases" -- one's in which the dominant order was not threatened, but White actors could seek to prove that the deck is not stacked, that the legal system and the judiciary could be trusted to be be fair and neutral. Godsil's example, for instance, are the "race nuisance" cases around the turn of the century, where Whites sued arguing that the presence of Blacks nearby (in homes or churches or businesses) constituted a "nuisance" under the law. Blacks often won these cases. Godsil argues that there is no immediate interest Whites possessed in ruling such, and hence an exception to the I-C theory appears. But Bell would presumably respond that by Godsil's own admission, "nuisance" rulings were not necessary to preserve America's segregated environment, so courts could afford to be "neutral" on them secure in the knowledge that there would be no practical effect on the Jim Crow structure they represented.

So that's interest-convergence. But it is hardly the only theory out there. In their book "Black Power", Stokely Carmichael and Charles Hamilton argue that Black progress only occurs in situations where Blacks have "closed ranks" so as to express sufficient political power to achieve their needs. Government responds to political pressure, only when Blacks are in a position to provide such pressure does true progress occur. As an example, they cite the establishment of the Tuskegee Institute (where Booker T. Washington spent most of his career). Tuskegee came into being because a local Democratic politician needed the votes of the Black community. He asked a local Black leader what it would take to deliver his community's votes. The man responded by requesting funding for a normal school. The candidate agreed, the votes were delivered, the school was built, and Tuskegee was born. Only because the politician felt he had to be responsive to the political power of Blacks, did Blacks see any material benefit. Whatever gains Blacks see in America's political arena today are directly correlated to the amount of political pressure they can bring to bear as a community. The 1960s saw a huge increase in the political mobilization and unity of the Black community, leading to positive governmental response. When their power as a group is diluted (gerrymandering, inability to elect the representatives of their choice), they lose influence.

Relatedly, James Cone argues that Black progress has historically occurred through a sort of "good cop/bad cop" mentality between various elements of the Black community. Martin Luther King was seen as a rabble-rousing radical by much of the White community -- until the Black Power movement began to arise in full force. At that point, the implicit argument made by the "mainstream" civil rights forces was "deal with us, or you'll have to deal with them." Civil rights progress only came into being because of the more radical "threat" Black Power posed in the background. Without the "bad cop", the "good cop" of idealistic liberal reform would have remained on the margins.

So, those are a few of the theories floating out there, explaining mechanisms for civil rights progress to occur while still taking account of the persistence of racism. Rather than civil rights being a case of Whites "seeing the light", the discourse is better seen as a struggle between the entrenched racial order and various responses by the Black community which managed to distress but not dislodge ingrained structural racism. If one believes Bell, racial progress stops at the moment where it ceases to be in White interests; if one believes Carmichael & Hamilton, racial progress stops where Blacks no longer possess the political power to enact reformist agendas; if one believes Cone, racial progress stops where there is no backdrop of serious radical challenge to force Whites to come to the bargaining table with "moderates."