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.