The Stare Decisis of Racial Inequality: Supreme Court Race Jurisprudence and the Legacy of Legal Apartheid in the United States

Introduction

More than a generation after the civil rights movement racial inequality persists as a defining characteristic of United States social structure. A multitude of scholars, ranging from social scientists to legal scholars to media pundits, have discussed and debated the causes of persistent racial inequality in the US, all offering varying explanations. Throughout these discussions and debates, one consistent theme resonates, both explicitly and in the subtle underpinnings: the post-civil rights era is a new legal era characterized by ‘formal legal equality’. The idea that legal changes occurring in the 1950s and 1960s fundamentally transformed the United States legal structure – altering it from one that legally sanctioned and maintained racial inequality to one that provided equality under the law for all individuals regardless of race – functions as the underlying assumption of a vast amount of scholarly work and popular commentary on race and racial inequality. ¹ Formal legal equality has become a loaded concept in the post-civil rights era, having the power to absolve the legal system, as a mechanism of the state, of its active role in the production, reproduction, and enforcement of racial hierarchy.

Certainly not all scholars and/or commentators on race in the United States view this newly constructed formal legal equality in the same manner. While some view it as a concrete basis for ending both legal and state centered racially remedial policies (see, for example, Chavez, 1996; Farber and Sherry, 1997; Pell, 2003, 2004; Sowell, 1984), others see formal legal equality in and of itself as a profoundly insufficient means of addressing deep structural racial inequality (see, for example, Caldwell, 1999; Crenshaw, 1988; Powell, 1995).

Yet despite their widely divergent conclusions about formal equality, these scholars (either explicitly or tacitly) all contextualize their analyses of racial inequality within the premise that the legal system of the post-civil rights era is characterized by a formal legal equality that is distinguishable from previous eras.

Here, I problematize the presumption that often occurs in scholarly work and popular discourse that the legal system of the post-civil rights era is fundamentally transformed, that it has been altered in ways that ‘level the playing field’ with regard to race and law. Instead, I suggest that when analyzed through a race critical sociological lens, one that explicitly accounts for the connection between racial ideology, discourse, and social structural dynamics of race (Bonilla-Silva, 1997), contemporary legal frames regarding race and racial inequality quite clearly contain vestiges of the legal frames of previous eras. Through a comparative analysis of key cases in the US Supreme Court’s race jurisprudence in the post-Civil War era and the post-civil rights era, I illustrate how the Court formulates the concept of formal legal equality shortly after the Civil War, long before the Civil Rights Movement. ² Moreover, I illustrate how the Court juxtaposes discursive assertions of formal equality with the divorcing of such equality from structural realities of racial inequality in both the Jim Crow and the post-civil rights eras.

The Court’s process of asserting formal legal equality, on the one hand, and then on the other hand, deploying discursive tactics that disconnect analyses of legal equality from the racial structure becomes a legal ‘epistemology of ignorance’ (Mills, 1997; Steinberg, 2007). In other words, the Court engages in a process of not knowing with regard to racially oppressive social arrangements, institutional organization, and structural inequalities – a process which then permits the Court to make assertions about equality under the law without enforcing any legal action to alter racially oppressive conditions.

As such, the Supreme Court creates a racial legal logic through an epistemology of ignorance when interpreting the Civil War amendments (the 13th, 14th, and 15th Amendments) to the Constitution, amendments which became a mechanism through which the Court protects white privilege, power, and wealth. The same racial logic persists in the Court’s decisions in the post-civil rights era. This analysis of cases from both eras reveals this stare decisis of racial inequality.

Legal Racial Reproduction and Race Critical Sociology

Race and racism have structured all the major economic, political, and social institutions of the United States since this country’s inception. As Joe Feagin (2000) notes, ‘race relations – or more accurately racist relations – are not in, but rather of this society’ (see also Carmichael and Hamilton, 1977). Throughout US history, notions of race and racist hierarchy were waged by white elites, with simultaneous assertions of the rhetorical principles of freedom, democracy, and equality under the law, as a political tool in order to justify the exploitation of human beings and land (Bell, 1987, 2000; Browne-Marshall, 2007; Lopez, 1997; Mills, 1997). Beginning with the construction of a constitution that recognized and politically protected racialized slavery, the law has operated as a central mechanism in the construction and maintenance of the racial state (Bell, 1987; Berry, 1994 [1971]; Crenshaw et al., 1995; Feagin, 2010). Historically, US law has been explicitly used to construct and enforce a white citizenry and government (see, for example, Glenn, 2002; Jacobson, 1998; Lopez, 1997; Lowe, 1997; Mills, 1997); to justify the theft and exploitation of land and human bodies for white economic gain (see, for example, Cornell, 1988; Feagin, 2010; Montejano, 1987); to define the boundaries of racial categories used to convey unearned privilege to whites and the forced subjugation of people of color (see, for example, Cornell, 1988; Davis, 1996; Gross, 1998; Jacobson, 1998; Lopez, 1997); and to prevent interracial alliances between those legally defined as racially distinct (see, for example, Davis, 1996; Gross, 1998; Lopez, 1997). In fact, Cheryl Harris (1993) has suggested that this legal history has imbued ‘whiteness’ with the legal characteristics of property. As such, race, racism, and the law have been fundamentally interconnected throughout the history of the United States. Because of this intricate connection, explicit interrogations of the continued role of the law with regard to the maintenance and protection of racial inequality become an essential project for social scientific investigation concerning racial reproduction. Such a project, I suggest, requires an analytical marriage of legal processes and race critical sociology.

The explication of the connection between racialized discourses and ideologies and the racialized social structure has been an important intervention of contemporary sociological research concerning racial inequality in the post-civil rights era. Eduardo Bonilla-Silva (1997) notes that racial ideologies (and the discourses that deploy them) and the racial social structure are fundamentally and recursively connected (see also Bonilla-Silva and Baiocchi, 2008; Feagin, 2010; Steinberg, 2007). In other words, when a society becomes racially structured, ‘there develops a racial ideology … This ideology is not simply a ‘superstructural’ phenomenon (a mere reflection of the racialized system), but becomes the organizational map that guides the actions of racial actors in society. It becomes as real as the relations it organizes’ (Bonilla-Silva, 1997: 470). Bonilla-Silva (2003), as well as other contemporary race scholars, has documented how racial discourses in the post-civil rights era function to obscure the structural realities of racism and racial inequality. In doing do, racial discourses have created an ideology through communicative interaction that functions to perpetuate racial inequality while simultaneously asserting a message of equality and democracy (see also Bonilla Silva and Baiocchi, 2008; Bonilla-Silva and Forman, 2000; Feagin, 2000, 2006, 2010; Gallagher, 2003; Moore, 2008). Thus, racial ideologies, and the discursive tactics that normalize them, play a central, though often covert, role in justifying structural arrangements of racial inequality. The same racial ideologies also provide a logic, or an ‘organizational map’, that assists in the perpetuation of racially oppressive social systems and institutions (Carmichael and Hamilton, 1977; Guinier and Torres, 2002; Mills, 1997).

The power of these discursive tactics of white racial ideology, what Bonilla Silva and Baiocchi (2008) have called a ‘white racial common sense’, lies in the way that they both justify and camouflage racialized practices, institutional organization, and structural relations (see also Feagin, 2010). As Mills (1997: 18) explains, this white logic becomes ‘a cognitive model that precludes self-transparency and genuine understanding of social realities’. In other words, what Mills (2007) has termed an ‘epistemology of ignorance’ (see also Steinberg 2007). This process of not knowing, failing to reflexively observe the realities of racial oppression that contradict dominant ideologies of democracy and equality, becomes a broader socially shared cognitive process, a collective memory based upon not knowing about racial oppression in the minds of white people (Brekhus et al., 2010; Steinberg, 2007). Thus, critical examinations of racial discursive tactics are essential to a broader understanding of the mechanisms of racial inequality (see also Bonilla-Silva, 2003; Hill, 2008). This connection between discourse and structure is particularly relevant with regard to US Supreme Court case law because, while case law is fundamentally discursive, the decisions of the Court are binding upon social actors making it powerfully structuring, not merely through ideological power, but also through the coercive power of the state.

The explanation and interpretation of the application and boundaries of statutory law and the US Constitution presented in case law represent a discursive communicative text, through which the broader ideological positions of the Court are revealed. As such, case law concerning race and racial oppression become an example of the racial discourse of the state. Importantly, this racial discourse is simultaneously legally binding upon social actors in a more direct manner than that of other discursive texts. Thomas Hobbes (1971 [1681]) suggested that it is not wisdom but authority that makes law. And though the court system, within the US scheme of law, is not set up to make law, as courts interpret the boundaries of law it wields incredible power over the application of law. As Gentithes (2009: 799) notes, ‘while [the court] can do nothing, it can prevent anything from being done’. With its power to delineate constitutional and statutory reach, the text of Supreme Court case law concerning race provides both an interesting, and structurally important case for examining racial discourse and legal racial epistemology.

A Method of Structurally Contextualized Critical Discourse Analysis

In analyzing cases of the Supreme Court, I conduct what I refer to as a structurally contextualized critical discourse analysis of key cases concerning legal issues regarding racial inequality and discrimination. Informed by both the sociological theoretical interventions in race scholarship and traditional methods of critical discourse analysis, this method connects discourse and structure in the analysis phase. Specifically, this process of analysis has three elements: identification of the legal frames employed in the race related cases of the Supreme Court, an analysis of the discursive tactics employed in the Court’s explanation and justification of the frames, and a critical evaluation of how the legal framing and discourse of the Court relates to and connects with the racialized practices, institutional arrangements, and structures that maintain white supremacy.

The first element of the analysis requires identifying the framing of the Court with regard to the law and the legal issues at hand in the relevant cases. A frame can be thought of as the logic that structures the boundaries and form of a process of communication (Strydom, 2000; Van Dijk, 1997). ³ In the case of court-made legal decisions, the frame is produced through the logic of meaning making the court engages in, in order to explicate the set-up for the legal analysis. In other words, the legal frame is the discursively produced logic map which sets up the boundaries of particular laws, the relevant facts that fall within those boundaries, the manner in which the law applies in reference to those facts, and finally, the Court’s legal decision in a particular case. This first aspect of the analysis, then, looks at what Bonilla-Silva (1997) might call the ‘organizational map’ that frames the Court’s racial legal reasoning. The benefit of a frame analysis, as such, is that it allows us to look at both what is in the Court’s frame and what gets excluded from the frame, as well as what the Court determines is irrelevant to the application of the law.

In conjunction with the frame analysis, I employ a process of critical discourse analysis to observe the racial discourse of the Court with regard to larger frames (Foucault, 1972). In other words, I examine the racial narratives and discursive moves utilized by the Court that objectify, rationalize, and normalize the broader framing of the legal issues (Bonilla-Silva, 2003; Chase, 1995). Focusing on the racial meanings, tropes, and ideations asserted (and ignored) by the Court, I examine the way the Court creates discursive support for its legal frame through the deployment of a particular racial logic (Feagin, 2010; Mills, 1997; Steinberg, 2007; Zuberi and Bonilla-Silva, 2008).

The central question with regard to the Court’s frame and discourse in race-related legal cases is how and whether the Court is deploying an epistemology of ignorance with regard to the racial practices, institutional arrangements, and structural organization characteristic of the historical moment during which the Court is speaking. As noted above, racial discourses (and the broader racial ideology they employ) are fundamentally embedded within the racial social structure. Thus one cannot fully understand the meanings and consequences of particular discursive frames or narratives without situating them within the context of the racial structure within which they are created, contested, and re-created (see Bonilla-Silva, 2003; Gross, 1998; Omi and Winant, 1994). A structurally contextualized critical discourse analysis, then, is informed by race-critical historical and contemporary empirical research that illuminates the mechanisms of racial oppression. Thus, it is through the lens of this empirical interrogation of racial oppression that I evaluate the framing and discourse of the Supreme Court with regard to issues concerning race, racial discrimination, and the law. ⁴

The Supreme Court: Key Cases

My analysis of Supreme Court case law compares two important race-related cases decided early after the Civil War era, cases that gave initial substantive legal meaning to acts of Reconstruction, including the 13th, 14th, and 15th Amendments to the Constitution, to three cases decided in the post-Civil Rights era – after the 1954 case of Brown v. The Board of Education, the 1964 Civil Rights Act, and 1965 Voting Rights Acts – legal reforms that came to signify the transformation to formal legal equality.

I focus exclusively on Supreme Court cases (as opposed to appellate-level court decisions or decisions of state courts) for three important reasons. First, decisions of the Supreme Court provide precedential authority. Not only are Supreme Court cases often legally binding upon other federal and state courts, but the Supreme Court is the ultimate and final authority in interpretation of the US Constitution, giving its decisions particular force with regard to stare decisis, or the legal notion that courts will abide by former court decisions on the same topic or follow precedent. ⁵ Which brings up the second reason for focusing on Supreme Court cases: as a result of the passage of the 13th, 14th, and 15th Amendments to the Constitution after the US Civil War, abolishing slavery, granting citizenship and equal protection of the law to African Americans, and granting voting rights to African Americans, questions of race and racism have been fundamentally tied to the Constitution, and thus often require a constitutional analysis. This means that the Supreme Court is the ultimate authoritative legal body with regard to these questions, and the resulting racial precedent of the Supreme Court becomes extremely powerful at all levels of law. And finally, decisions of the Supreme Court often have what legal scholars refer to as a ‘chilling effect’, meaning that once the Court has ruled in a particular manner, litigants and lawyers tend not to challenge the Courts’ interpretation directly because the force of precedent tends to always mean that a head-on challenge to Supreme Court doctrine will fail (for discussion, see Ross, 1990). This implies that even the choices of legal argument and strategy pursued by lawyers and legislators are deeply influenced by the discursive frames employed by the Supreme Court.

Because my analysis requires thick description and considerable discussion of racial practices and structures, for this article, I restrict myself to analyzing a total of five Supreme Court cases. Utilizing a process of theoretical selection, I selected two key cases in the post-Civil War era, and three in the post-civil rights era. These cases were selected based upon their legal relevance with regard to their authority in framing the entire body of race jurisprudence in each era, as well as for their representation of different institutional contexts (for discussions of theoretical sampling and data relevance, see Denzin and Lincoln, 2005; Johnston, 2002; Lofland and Lofland, 1995). Speaking to the later rationale, Mills (1997, 2003) notes that white supremacy is enacted through white domination over a wide range of institutional and social settings. Thus, I choose cases that represent the Court’s racial logic with regard to several different social and institutional contexts. In addition, however, largely because of their precedential significance, these cases exemplify broader legal patterns with regard to the race jurisprudence (or theory of law with regard to race) in each of the two legal eras I address (see Bell, 2000).

From the pre-civil rights era, I selected the two legal cases that were most influential with regard to giving meaning to the post-Civil War Constitutional amendments, and which ultimately shaped the legal force of the legal changes that accompanied Reconstruction. First, I analyze The Civil Rights Cases (1883), ⁶ a consolidated group of cases which challenged the authority of the United States Congress to pass laws prohibiting individuals from excluding African Americans from public accommodations such as restaurants, hotels, and transportation services. This case provided one of the first and most authoritative analyses during this era of the 13th and 14th Amendments with regard to race, and the power of Congress to act in the deconstruction of racist exclusions in conjunction with these amendments. The second, the infamous 1896 Plessy v. Ferguson ⁷ case, further explicated the meaning of the 13th and 14th Amendments, ultimately setting forth the doctrine of ‘separate but equal’, which was widely recognized as the definitive legal doctrine with regard to race until the 1954 Brown v. Board of Education decision (a case that signifies to many scholars the start of the Civil Rights Movement, at least with regard to the law [Morris, 1999]).

In the post-civil rights era there has been significantly more Supreme Court case law regarding race and racial inequality. I focus on three cases which are representative of general principles of relatively settled law with regard to race and (in)equality (I document their record of citation in endnotes). I begin by looking at the 1974 case of Milliken v. Bradley, ⁸ a case concerning segregation in public schools in a line of cases directly resulting from Brown v. Board of Education. Not only is the selection of this case theoretically relevant because it is in the direct line of Brown, the civil rights case which many have argued epitomizes the Court’s departure from stare decisis with regard to race, but Milliken also sets the groundwork for legal framing of race-related case law in other institutional areas. The second case I examine is Washington v. Davis, ⁹ a 1974 decision that provides a 14th Amendment analysis of the issue of employment discrimination and has become perhaps the most influential case of the contemporary era with regard to the legal framing of racial discrimination and the reach of the 14th Amendment (Flagg, 1993). Finally, I examine the death penalty case of McCleskey v. Kemp, ¹⁰ a case in which the Court considers the legal implications of severe racial disparities in death penalty sentencing. Ultimately, this case sets the guidelines for state action with regard to race and the criminal justice system.

Through the analyses of these five cases, I reveal a remarkable consistency of frame and discourse with regard to the structure of racial oppression since the end of the Civil War. This similarity transcends legal eras, permeating from the Jim Crow era through the post-civil rights era to today, illuminating a stare decisis of racial inequality based in an epistemology of ignorance.

Creating the Precedent: The Supreme Court and Reconstruction

Between the end of the Civil War and the late 1870s, a series of legal actions were taken by the then-named Radical Republicans to ensure the end of racialized slavery and to secure equal rights of citizenship to African Americans (Bell, 2000; Browne-Marshall, 2007; Franklin, 2000; Urofsky, 1988). Reconstruction resulted in the 13th, 14th, and 15th Amendments to the Constitution, as well as a series of Civil Rights Acts enacted by Congress between 1870 and 1875. The scope of these legal initiatives, however, was immediately and severely limited when the Supreme Court spoke to interpret the legitimacy of these pieces of legislation, as well as the meaning and application of Reconstruction Amendments. The 1883 case that has come to be called the Civil Rights Cases exemplifies the Court’s jurisprudential frame with regard to attempts at racial reform. ¹¹

The Civil Rights Cases were actually a series of cases concerning the constitutionality of the Civil Rights Act of 1875. These cases were consolidated into a singular decision by the Court concerning the constitutionality of the 1875 Act. The cases involved the Section of the Civil Rights Act that prohibited racial discrimination in so-called ‘public accommodations’, such as ‘inns, public conveyances on land or water, theatres, and other places of public amusement’. White owners of such public accommodations challenged the authority of Congress to pass a law prohibiting exclusions based upon race, while Congress suggested that its authority lay in the mandates of both the 13th and 14th Amendments. Each of these Amendments contains a final clause, which states that ‘Congress shall have power to enforce this article by appropriate legislation’. The Civil Rights Cases thus provided the Supreme Court with an opportunity to explicate the legal boundaries of the 13th and 14th Amendments and to determine the powers these Amendments granted to Congress with regard to the passage of civil rights legislation.

The 14th Amendment to the Constitution states, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ Congress asserted that this guarantee of the equal protection under the law (the Constitutional basis for claims of racial legal equality), combined with the clause which gave Congress the right to act to enforce such protection, allowed the passage of federal legislation prohibiting racial discrimination in so-called public accommodations. The Supreme Court, however, disagreed, suggesting that the actions of owners of public accommodations were ‘private’ actions, not ‘state’ actions, meaning that the 14th Amendment did not apply to the actions of private individuals but instead only applied to actions taken by the state.

Importantly, the Court begins its analysis of the civil rights legislation in the Civil Rights Cases by setting forth a frame identifying the legal command of the 14th Amendment. The Court states that the Amendment:

nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. (p.17, italics added)

By drawing from the actual language of the 14th Amendment, the Court sets up a legal frame that emphasizes the legal requirement of equal legal treatment. In other words, the Court’s legal frame in the Civil Rights Cases begins with an assertion of formal legal equality. Sociologist Max Weber (1925, 1966) discussed the concept of formal equality (or, as he often phrased it, ‘equality before the law’) in his work, and defined formal equality as ‘the abstract regularity of the execution of authority’ (1966: 224). Similarly, some contemporary civil rights scholars have defined formal equality as ‘a civil rights policy in which all Americans, regardless of race or color, are held to be of equal legal status … entitled to equal legal treatment’ (Brooks et al., 1995: 8, italics added). ¹² Using these definitions, we see that in the Civil Rights Cases the Court is, with plain language, asserting a legal framing of the 14th Amendment that is based on formal legal equality.

Yet even as the Court asserts formal equality, it deploys a corresponding legal frame that facilitates the maintenance and protection of White property interests by creating a legal distinction between public versus private actions. The Court says:

… it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual. (p. 17, italics added)

Thus, the Court created a legal framing that asserted the 14th Amendment’s guarantee of equal legal treatment – formal legal equality – but subsequently limited the reach of the law to actions taken by the state or state actors, not allowing it to reach the actions of individuals. ¹³ As a result, the Court frames formal legal equality in a manner that does not protect the right of African Americans to be free from discrimination in public accommodations, but instead protects the rights of whites to actively exclude African Americans from their property. The Court achieves this through discursive maneuvering that de-contextualizes the legal construction of a public and private sphere from the realities of racial practices and the structural outcomes of those practices.

This distinction between ‘public’ versus ‘private’ action with regard to the protections of the 14th Amendment made by the Court in the Civil Rights Cases is critical to understanding the white racially framed logic of the Court at that particular time. Not only was this distinction key to the Court’s protection of white structural privilege, power, and wealth, but the public/private distinction has legally bound the scope of the 14th Amendment since this decision was made. ¹⁴ The Court made two potentially problematic underlying assumptions, not explicitly addressed in the text, in order to facilitate the division of public and private. First, the Court seems to assume that ‘public accommodations’ are owned by individual citizens in the same manner that private land and dwellings are owned. Individuals are presumed to have the same right to exclude in their ownership of businesses open to the public as they would in the ownership of a private home, despite the fundamentally public nature of the businesses as recognized by Congress. This was not a necessary or natural conclusion, but was instead a construction with regard to race and property that reinforced existing racialized property relations. The Court’s frame protected white property accumulation that resulted from the era of slavery, during which African Americans were unjustly deprived of any right or access to own property (in fact, this was an era which held African Americans themselves to be a form of property) (see Feagin, 2010; Harris, 1993; Williams, 1991).

Following from this first assumption, the Court next proffers a structurally disconnected analysis of individual versus state behavior. In an overly simplistic separation of ‘state’ and ‘individual’, the Court ignores mechanisms of systematic racial oppression in this historical era. The laws, which created, abided, and ultimately enforced racialized slavery, functioned to construct African Americans not only as a subordinate class of human beings, but literally as a less than human ‘species of property’ within the law. ¹⁵ The enforcement of this institutional arrangement created and sanctioned a form of subordination that required the compliance and participation of individual citizens much more than that of state actors. It was private white individuals (as opposed to state actors such as government officials or police officers) who actually enslaved and controlled African American bodies, who worked as ‘over-seers’ of slave plantations, and who patrolled the countryside as slave catchers (DuBois, 2002; Franklin, 2000). White individuals also did the work of violently enforcing, upon the minds and bodies of African Americans, their inferior status (Fanon, 2004; Feagin, 2000, 2010). The state alone simply would not have had the manpower to enforce systemic racial subjugation. Thus, what the ante-bellum legal structure did, in part, was to grant authority to the white citizenry to enforce, with state support, the racial superiority of whites and the racial inferiority of African Americans. These practices could clearly have been viewed as a state sanctioned and state supported custom, if not an explicit state action. Yet, the Court limits the legal reach of the 14th Amendment through its deployment of additional legal frames, legally constructing public accommodations as private property and separating state action as distinct from private action. Thus the Court decouples legal equality and the racial social structure.

Next, the Court took up the issue of the 13th Amendment’s language, allowing Congress to enact laws that eliminate slavery and involuntary servitude. In addressing whether the language of the 13th Amendment gave Congress the authority to prohibit racial exclusion in public accommodations, the Court noted;

… the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. (p. 20)

Here, again, the Court asserts a frame that espouses universal civil and political freedom (a sentiment of formal legal equality) and goes even further to state that the 13th Amendment grants Congress the power to abolish, not just slavery, but all badges and incidents of slavery. ¹⁶ Yet, again, the Court follows this framing with discursive moves that protect white interests deploying a tormented racial logic. Discussing the issue of exclusion from public accommodations the Court said:

Where does any slavery or servitude, or badge of either, arise from such an act of denial [into public accommodations]? … It may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of inns and public conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself … (pp. 21–2)

With this discursive turn, the very Court that had introduced the legal frame of badges and incidents of slavery squashes the notion of badges and incidents to near meaninglessness (see Bell, 2000: 57). With this action, the Court ignores the interconnected institutional mechanisms that supported the bondage of African Americans in slavery and asserts that continued exclusion from public accommodations, created, in part, to make escape from slavery more difficult, was no part of the servitude itself. Through that logic, the Court concludes that Congress cannot prohibit racial exclusions in public accommodations.

In 1896, the Supreme Court spoke again with regard to race and the boundaries of the 13th and 14th Amendments in the now infamous case of Plessy v. Ferguson. ¹⁷ Plessy was brought before the Court as a test case to challenge the legality of a Louisiana state law, which required that all in-state trains racially segregate their passenger cars such that whites and African Americans were seated in separate cars. Mr Plessy, a man whom the state identified as ‘seven eighths Caucasian and one eighth African blood’, was arrested for refusing to vacate a passenger car designated as a white car. Drawing upon and strengthening the reasoning of the Court in the Civil Rights Cases, the Court in Plessy said,

The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. (p. 544, italics added)

Here, again, the Court clearly emphasizes the frame of formal legal equality noting, in fact, that ‘absolute equality’ is required and recognized by the Court. ¹⁸ With an explicitly stated frame of legal equality, the Court engages in a racial discourse that explicates the boundaries of absolute equality of the two races before the law. Through this racial discourse, the Court concludes that formal legal equality is not violated by state mandated social separation. The Court does this with a discursive move that suggests that the interests of white people and African Americans are equally situated, noting that ‘a commingling of the two races’ in settings like public transportation would be ‘unsatisfactory to either’ (p. 544).

The Court alludes to implicit understandings of racial ideologies and practices, asserting a particular legal knowledge about the general consensus among people of all races to an aversion to commingling. The presumptive foundation for such logic includes the tacit notion that African Americans and whites are in similar position with regard to decision-making authority concerning such commingling. Indeed, this is required for the framing of absolute legal equality to fit with the discursive move that then permits legal segregation. The Court’s premise is repeated, but qualified when it responds to the argument that legally enforced racial segregation is a badge of inferiority, which would be prohibited by the 13th Amendment. The Court opines:

the assumption [is] that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. (p. 551)

The Court re-frames the argument that racial segregation is a mechanism of racial oppression and instead suggests that if segregation is related to racial inferiority, then it is merely because of the (mis)perception of African Americans. In what might be the most illustrative example of an epistemology of ignorance, the Court denies that racial segregation is a mechanism of white supremacy, and instead asserts that it is a mutually agreed upon regulation of commingling that is only related to racial oppression when African Americans choose to construct it in that manner.

Through this framing and discursive maneuvering, the Plessy Court constructed the legal doctrine that came to be known as ‘separate but equal’. By itself, the decision and the legal principle of ‘separate but equal’ represent a model of legal formalism. The Court holds that facilities can be racially segregated but they must be equal. And, while it may make some readers bristle, the Court is not incorrect in the assertion that mere separation does not automatically lead to inequality. Think, for example, of a system in which people are separated on public conveyances by alphabetic order of last name – A–M in the front, N–Z in the back, where the front and back are absolutely equal facilities (as the Court claims it requires in Plessy). Of course, the relevant question becomes whether racial segregation is simply equal separation, the answer to which lies in the social practices, institutions, and structures of racial oppression in the late 1800s.

It is quite clear that racial segregation was motivated by both racial hostility and a desire to maintain the racial oppression of African Americans (Bell, 2000; Franklin, 2000; Woodward, 1974). It is equally clear that separate was never meant to mean equal during the Plessy era. The Plessy decision ushered in the era of Jim Crow laws – laws designed to segregate whites and African Americans in all facets of social life. Segregated spaces, however, were anything but equal (Feagin, 2010; Woodward, 1974). As C. Vann Woodward has noted, ‘the Jim Crow laws, unlike feudal laws, did not assign the subordinate group a fixed status in society. They were constantly pushing [African Americans] farther down’ (1974: 108). Thus, Plessy represents a clear example of the Court’s fractionalized racial discourse that asserted legal equality while blithely obscuring racial practices and structure.

The discursive tactics of the Supreme Court in the post-Civil War era provided the legal protection for and reification of white supremacy. More than that, however, the legal framing and discursive tactics of the Court formed a racial legal logic that became deeply embedded in race related law – a stare decisis of legal racial inequality that tacitly carried into the race jurisprudence of the post-civil rights era.

The Stare decisis of Racial Inequality

Conclusion

The principle of stare decisis, or the judicial obligation to consult with and abide by previous case law in determining present cases, has been an element of US law since its foundations in English common law. Commitment to precedent is regarded as a vital element of the Court’s legitimacy (see Gentithes, 2009). Unfortunately, with regard to race, the precedent of US law lies in a legal system that orchestrated enslavement, genocide, theft, and oppression, justified through a legal frame that facilitated the construction of racial dehumanization in the name of a system of racial oppression based upon white supremacy (Lopez, 1997). The Civil Rights Movement, and the legal initiatives that emerged from that social era, have been viewed, within the scholarly and popular discourse, as a departure from this precedent of racial oppression. Brown v. The Board of Education (1954) was viewed as the Supreme Court’s break from precedent, the end of the stare decisis of race. A closer analysis, however, reveals a deeper and more persistent connection between racial oppression and the law – a stare decisis of racial oppression that transcends legal eras and remains embedded in contemporary law.

As I illustrated, the Supreme Court has a long history – at least since the end of the United States Civil War – of asserting a legal commitment to formal legal equality while at the same time creating contingent legal frames and engaging in discursive moves that disconnect legal equality from structural reality. The result, in the post-Civil War era through the present, is a legal frame that protects white privilege, power, and wealth through a race jurisprudence that ignores and denies the real mechanisms of racial oppression. Mills (1997: 18–19) notes that the legitimacy of white supremacy in a democratic political formation requires a ‘white epistemic authority’ – in other words, ‘white misunderstanding, misrepresentation, evasion, and self-deception on matters related to race’. Throughout US history, the Supreme Court has been a source of this white epistemic authority, engaging in an epistemology of ignorance that enables it to attest to formal legal equality while preventing meaningful racial change through discursively asserted misunderstandings, misrepresentations, and evasion regarding the mechanisms of racial oppression. With its principle of ‘separate but equal’, as established in the post-Civil War era, and the principle of intentional, purposeful, individual action with racial animus established in the post-Civil Rights era, the Court has remained committed to an epistemology of ignorance that has legally protected and reproduced white privilege, power, and wealth throughout US history.

Presumptions, both in scholarly and popular discourse, that contemporary racial inequality is no longer a result of the law, that it is de facto rather than de jure inequality, are based upon misunderstandings concerning racial legal framing. As this analysis indicates, post-civil rights laws and the Supreme Court that interpreted and explicated those laws, remain a powerful apparatus of the state with regard to the reproduction of racial oppression. Rather than continue to presume that the concept of formal legal equality indicates some form of meaningful legal change, it is time that we recognize it as a rhetorical tool in a broader racial discourse that supports a legal epistemology of ignorance.