Recognizing Race

By: Justin Driver

 

Judges habitually decide whether to identify individuals racially within the context of judicial opinions. Yet this practice, which this Essay labels “recognizing race,” has thus far gone virtually unexplored by legal scholars. The dearth of scholarly attention to this practice is lamentable, as judges often appear to make poor decisions in this arena—not only recognizing race when they should avoid doing so, but failing to recognize race when they should. This Essay represents the first sustained effort to offer a broad examination of the judiciary’s racial recognition in an attempt to articulate broadly applicable normative principles. After observing that the number of cases requiring judges to recognize race is dramatically smaller than is commonly appreciated, this Essay identifies and critiques two common pitfalls that judges should seek to avoid: asymmetric racial recognition and gratuitous racial recognition. The Essay then provides four reforms regarding how judges might affirmatively harness the potential of racial recognition. First, judges should explain in writing why opinions recognize race. Second, judges should contemplate how racial equality may be served by “unrecognizing” race, even if a particular legal question contains a racial element. Third, courts should practice racial inversion, a technique that assists judges in thinking through precisely what work—if any—racial considerations play in a particular case. Finally, and perhaps most importantly, judicial decisionmakers should bear in mind that opinions can adhere to the anticlassification principle while avoiding the colorblindness principle—two distinct concepts that legal scholars have incorrectly conflated. By defamiliarizing racial recognition, this Essay aims to make the legal community more conscious of its often confounding race-consciousness.

 

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