The Rhetoric of Racism in the United States Supreme Court
62 Pages Posted: 30 Nov 2020 Last revised: 2 Dec 2020
Date Written: October 6, 2020
This Article is the first study that categorizes and analyzes all the references to the terms racist, racism and white supremacy throughout Supreme Court history. It uses the data to tease out how the Court has shaped the meaning of these terms and uncovers a series of patterns in the Court’s rhetorical usages.
The most striking pattern uncovered is that for the Supreme Court, racism is either something that just “happens” without any acknowledged racist actor or something that is perpetrated by a narrow subset of “usual suspects” such as the Klan or Southern racists. In the Supreme Court’s usage, the law and the Court are largely innocent in perpetuating racism.
The other striking pattern is the significant modern uptick in references to racism and white supremacy that deny or minimize the harms of racism or engage in blame-shifting tactics. Over the course of the last two decades, references to racism to connote bias have decreased even with regard to those “usual suspect” bad actors, while defensive backlash references have increased.
This Article demonstrates how the Court’s definition of racism and white supremacy undercuts the law’s potential to achieve racial justice and has removed the Court as a player in the fight against racism. To rectify this rhetorical (and doctrinal) problem, the Justices on the Court must name racism boldly and directly, especially when the Court and its decisions bear responsibility for it.
Keywords: racism, critical race theory, rhetoric, language, racial justice
JEL Classification: K10, K19, K39, Y10
Suggested Citation: Suggested Citation