Abstract

Excerpted From: Devon W. Carbado, Strict Scrutiny & The Black Body, 69 UCLA Law Review 2 ( March, 2022) (338 Footnotes) (Full Document)

When people in law think about strict scrutiny, they have in mind a doctrinal regime that shapes various areas of constitutional law, including the U.S. Supreme Court's interpretation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution. A starting point for understanding equal protection law is knowing that every time the government acts--whether by way of a policy, a practice, or a law--it is vulnerable to the claim that this state action violates a person's or a group's equal protection rights because it treats similarly situated people differently without sufficient justification. Courts employ different standards of review, or different levels of scrutiny, to determine whether equal protection has been denied depending on the nature of the distinction on which the government is said to have relied.

Suppose, for example, that the California Legislature passes a law that requires people who drive red cars to pay higher taxes than people who drive cars of other colors. Red-car drivers could sue the state arguing that the law in question violates their right to “equal protection.” The red-car drivers' theory would be that red-car drivers are part of the same group as (or at least similarly situated vis-à-vis) people who drive cars of other colors in relation to taxation. Therefore, the California legislature should not be able to treat red-car drivers differently by imposing on that group a higher level of taxation absent sufficient justification for doing so.

Were the case to land in court, the presiding judge would have to decide the level of scrutiny to apply in reviewing the California law. Should the judge presume that the California legislature acted properly and defer to its judgment and reasons for imposing higher taxes on red-car drivers? Should the judge instead ask, without presuming one way or another, whether the California legislature had a “good” reason for taxing red-car drivers more heavily than it taxes people who drive cars of other colors? Or should the judge presume that the legislature acted improperly--indeed, unconstitutionally--and rigorously examine the basis for the legislature's disparate treatment of red-car drivers?

These three different sensibilities roughly track the three different standards of review, or levels/tiers of scrutiny, courts employ to determine whether governmental action violates equal protection. Those three standards of review are: (1) rational basis review, a deferential standard, under which the presumption is that the government acted constitutionally, (2) intermediate scrutiny, a prudential standard, under which there is no presumption with respect to constitutionality and the inquiry turns on whether there is a good reason for the government's conduct, and (3) strict scrutiny, a rigorous and nondeferential standard, under which the presumption is that the government acted unconstitutionally. Though the equal protection landscape is slightly more complex than I have described, the takeaway for our purposes is that a “tiers of scrutiny” analysis is central to equal protection law.

As an economic regulation which does not treat people differently based on a group status that receives special constitutional attention, the hypothetical California tax law above would likely be analyzed under rational basis review and thus the law would enjoy a presumption of constitutionality and the California legislature would receive deference with respect to its justification for enacting it. With respect to governmental action that expressly takes race into account, by contrast, courts apply strict scrutiny and treat such conduct as presumptively unconstitutional. To overcome that presumption, the government must offer a “compelling justification” for its decision to rely on race, and the means the government chooses to effectuate that justification must be “narrowly tailored” in the sense that race should figure as a relatively thin factor in its decision-making. As I discuss in Part I, this doctrinal arrangement applies even if the government is invoking race for benign or remedial purposes--that is, as an effort to counteract racial inequality or to promote racial justice. By way of example, efforts on the part of a state university to racially integrate or diversify its student body would be subject to the same judicial skepticism and presumption of unconstitutionality as efforts on the part of that institution to racially segregate its students. From the Court's perspective, because both integration initiatives and segregation initiatives necessarily rely on race, courts should treat both uses of race as suspect and subject them to strict scrutiny review.

For several decades now, the formalism that all uses of race should receive the same constitutional treatment--strict scrutiny--has shaped constitutional law. The entrenchment of that approach ties the remedial hands of the government, limiting the degree to which governmental actors may expressly take race into account to mitigate the range of inequalities that structure Black life. Motivating the Court's suspect treatment of racial remediation is the normative view that race should notmatter.

But judicial pronouncements that race should not (or does not matter can make race matter in very subordinating ways. That is because it is hard if not impossible to meaningfully address all of the extant forms of Black inequality, including with respect to education, policing, housing, healthcare, employment, and carcerality, without adopting social practices and policies that explicitly take race into account. Because Black people experience race-specific harms in society, the most efficacious and capacious way to capture those harms often will be to “narrowly tailor” remedial efforts via race conscious interventions.

As this Article will explain, however, race conscious “narrow tailoring” is not the kind of “narrow tailoring” on which equal protection law currently rests. Quite the opposite is true. Time and again, the Supreme Court has deployed “narrow tailoring” as one of several juridical tools to construct a colorblind equal protection wall that blocks or severely restricts the government's ability to improve the material conditions of Black life.

Though this Article includes an interrogation of equal protection law, it is not fundamentally about the legal regime of strict scrutiny. My aim is instead to articulate a conceptualization of strict scrutiny beyond the parameters of constitutional doctrine. The central claim the Article advances is that, in different ways and to different degrees, Black people live under a social regime of strict scrutiny too. My thinking in that regard is very much a product of being a student of constitutional law. Indeed, it is precisely my knowledge of and engagements with equal protection doctrine that have led me to the conclude that both the discursive and normative terms in which courts articulate the legal regime of strict scrutiny, and the disciplinary effects of that juridical apparatus, can be mobilized to shed light on manifestations of antiblack racism in the social world. To put this point more precisely, what I am calling the social regime of strict scrutiny trades on some of the same racial logics that underwrite the legal regime of strict scrutiny. Like its legal manifestation, the social version of strict scrutiny includes both “compelling justification” and “narrow tailoring” prongs. And just as these prongs are used to justify, adjudicate, and regulate the use of race in the legal context, they are used to justify, adjudicate, and regulate, the presence of race--and more precisely the presence of the Black body--in the social context.

With respect to the “compelling justification” prong, a “compelling justification” for Black presence is required, enforcing a presumption (significantly, not a rule) that Black people should not be present almost anywhere except in cognizable zones of racial subordination--perhaps the quintessential example of which are prisons. Prison is one of the places where our overrepresentation communicates the message that we belong. We are suspicious and presumptively do not belong anywhere else. The currency of that suspicion produces the strict scrutiny we experience when conducting or engaging in almost anything while Black, including jogging in our neighborhoods, entering our homes, and picnicking in public parks.

The “compelling justification” prong of the social regime of strict scrutiny is racially restrictive in another sense: It treats as suspect the voices of Black people and our accounts of inequality. While our perspectives and experiences of discrimination--in workplaces, colleges and universities, and society more generally--are considered and accepted from time to time by the relevant bodies of listeners, those perspectives and experiences must be deemed “compelling” for that acceptance to occur. Making matters worse, the bar for meeting that “compelling” justification standard is meant to be exceptionally high. No matter the context, Black people are expected to suffer an extreme amount or form of subordination. Moreover, they are required to attribute that subordination to an identifiable “bad actor” who engaged in intentional and explicit forms of racial discrimination before Black people can hope for an intervention. In the rare instances where intervention is provided, it is typically directed at punishing the “bad actor” only, rather than (or in addition to) disrupting institutional and social arrangements that structuralize Black inequality.

The “narrow tailoring” prong of the social regime of strict scrutiny imposes its own regulatory demands. It exerts colorblind pressure on Black people to “work their identity” and “narrowly tailor” it in a way that makes race appear to be merely a matter of differences in skin color. In other words, under “narrow tailoring,” Black people are expected to strip ourselves of the very forms of racial consciousness through which our sense of racial solidarity and acts of resistance have been forged. This disciplinary effect of “narrow tailoring” might be understood as a form of governmentality under which Black people self-monitor and self-fashion ourselves to produce “racial comfort” and “racial palatability,” both of which then serve to manage (but never thoroughly displace) other people's fears and anxieties about Blackness. Understood that way, the phenomenon of “narrow tailoring” is a window--albeit a rather narrow one--not only on the erosion for Black people of what Rinaldo Walcott refers to as “bodily sovereignty,” but also on the “fungibility” of Blackness more generally, or the ways in which Blackness can be instrumentalized, commodified, and exchanged to further entrench Black people's subalternity.

The work “narrow tailoring” thus performs in the social realm is not unlike equal protection doctrine's “narrow tailoring” requirement in the legal realm. Particularly as articulated in the context of affirmative action policies in higher education, the Supreme Court not only ignores or marginalizes the subordinating features of race and solidaristic configurations of Black community; the Court also constitutionalizes a palatable conception of race under which perhaps the most profound marker of inequality in the United States--race--is treated as “one factor among many.”

To be clear, what I am calling the social regime of strict scrutiny does not purport to map the full contours of race and racism in the social world. My account is far from, and certainly does not aspire to be, a “total theory” of race, whatever that might mean. Indeed, if I am confident of anything I say in this Article it is that my account of strict scrutiny leaves out quite a bit. I am using the strict scrutiny frame for two principal reasons. First, I employ it to put into sharp relief some of the social features of race that structure the terms on which Black people navigate society. Here, my effort is to show how the logics and language of strict scrutiny from the legal realm help illuminate racial dynamics in the social realm.

Second, foregrounding the social regime of strict scrutiny makes it easier for people to see how its legal counterpart limits the antiracist potential of equal protection doctrine. In other words, an account of how the social regime of strict scrutiny effectuates a “heightened” and “rigid” review of Black bodies makes it easier to see how the legal regime of strict scrutiny effectuates a “heightened” and “rigid” review of essentially all forms of antiracist interventions.

Facilitating that awareness is all the more crucial because at some point during law school (typically, the first year), almost every law student studies the legal regime of strict scrutiny. But many of those students will not necessarily appreciate (and might not be encouraged to see) the disciplinary effects of that body of law. Enabling students to confront how the social regime of strict scrutiny disciplines Black bodies, including by demanding the “narrow tailoring” of Black people's relationship to (their) race and their aspirations for racial justice, puts those students in a better conceptual and normative position from which to consider how the legal regime of strict scrutiny disciplines antiracist policies and practices, including by demanding the “narrow tailoring” of equal protection doctrine's relationship to race and its capacity to fashion or accommodate racial remediation.

In placing the legal regime of strict scrutiny in conversation with the social regime of strict scrutiny, then, my hope is that all readers will come to see that strict scrutiny both enables forms of racial subordination against Black people (by treating the Black body itself as suspect) and simultaneously undermines efforts to address that subordination (by treating remediation efforts that seek to address Black racial inequality as suspect). The combined effect of the social and legal regimes of strict scrutiny creates an overarching racial governance structure that justifies--indeed, legalizes the existence of--Black inequality and treats it as a naturally occurring racial disaster beyond the state's or anyone's control. The end result is that not only are the dominant ways in which Black people experience what Ruth Gilmore calls “premature death” pushed beyond social and constitutional legibility and legitimacy, but so are antiracist efforts that contest those conditions of Black life. Under the social and legal regimes of strict scrutiny, Black people are supposed to be unspeakable witnesses to their own marginalization.

Before I proceed to map the organization of this Article, a word about my articulation of Blackness is in order. That I am speaking of Blackness and Black people in generalizable terms is not to deny important intraracial differences. Among other theories, Kimberlé Crenshaw's theory of intersectionality exposes the epistemic and representational violence (in knowledge production, law, and community organizing) that can arise from the failure explicitly to grapple with intersectional configurations of power. Accordingly, there are moments in this Article when Blackness will be formulated in more particularized terms, explicitly modified, as it were, to attend to intrablack differences. But, for the most part, the claims I advance in this Article rest upon articulations of Blackness per se, or what Elizabeth Alexander might call “bottom line blackness.” That is because both the legal and social regimes of strict scrutiny are triggered by race per se logics through which Black people, and remedial projects that center Black life, are treated as suspect racial classifications--per se--that warrant the application of “heightened” scrutiny.

Part I begins the discussion of that scrutiny by describing the legal regime of strict scrutiny as it applies to race. Its point of departure is a re-reading of Justice Powell's opinion in Regents of the University of California v. Bakke through the prism of the Black body--that is to say, through the configurations of Blackness the opinion instantiates and the refusals to acknowledge and remediate Black marginalization it effectively constitutionalized. While that opinion splintered the Supreme Court in a variety of ways, its reasoning helped define the doctrinal terrain of not only affirmative action, but also of equal protection law more generally, infecting that body of law with the view that any consideration of race triggers heightened scrutiny. Much more was at stake in Justice Powell's opinion than the constitutionality of affirmative action alone. Examining the suspect classification story on which Justice Powell's opinion rests--and the disposability of Black racial inequality it legitimizes--offers a window into how equal protection law became a doctrinal landscape on which the unequal dimensions of Black life do not matter.

Part II then focuses on the social regime of strict scrutiny. It describes how the “compelling justification” and “narrow tailoring” prongs of that regime collaborate to subject Black people to various forms of public and private surveillance. Perhaps the starkest application of the social regime of strict scrutiny in Black people's lives is through policing, with its surveillance, targeting, and deadly suspicion of Black bodies. But Black people are made suspect and thus vulnerable in other contexts too, all in ways that determine how we conduct ourselves and manage our identities to mitigate our exposure to discrimination and violence--and sometimes quite literally to save our lives.

Compounding that vulnerability is the fact that the application of strict scrutiny to Black bodies is always already an unfinished project. From social moment to social moment, in interaction after interaction, strict scrutiny is reiteratively rolled out in response to the “threat in the air” Black bodies are socially constructed to create. It is precisely this reiterative dimension of strict scrutiny that structures a social reality in which there is no escaping strict scrutiny's gaze. Quite the contrary. Each time Black people survive strict scrutiny is a precursor to the next application of the regime, and it lives on as a warning of what we must do--prophylactically and reactively--to manage the various forms of scrutiny the suspect status of Blackness so often triggers.

[. . .]

This Article has described the relationship between the legal regime of strict scrutiny and the social manifestation of that phenomenon. Both regimes function to diminish the value and the quality of Black life. The legal regime of strict scrutiny treats racial remediation projects designed to address Black inequality as presumptively suspect; the social regime treats the Black body itself as presumptively suspect.

Neither the legal regime of strict scrutiny nor its social counterpart is supported by a “compelling” justification. Presumably, few people would argue that there are compelling reasons to support legal frameworks or social practices that facilitate and legitimize Black subordination. Nor are there compelling reasons why white American concerns about (and arguments against) racial remediation should trump Black American concerns about (and arguments against) racial inequality.

Yet for more than four decades, equal protection law has taken sides, racially preferring white claims about “reverse discrimination” over Black claims about substantive racial inequality. Given the indisputable histories of racial violence against Black people in this country, including slavery and Jim Crow, it is all the more distressing that the Supreme Court has effectively “narrowly tailored” equal protection law in two antiblack ways: (1) to target racial remediation--whether in education, employment, voting, or other contexts--for moral and juridical opprobrium in the sense of rendering them normatively and constitutionally suspect; and (2) to recast those antiracist countermeasures as racial preferences that harm innocent whites.

Though my arguments about the social regime of strict scrutiny have focused mostly on its treatment of Black bodies, I should note as well that, like its legal counterpart, the social regime of strict scrutiny also treats antiracist initiatives as presumptively suspect. A salient example of what I mean is the ongoing backlash against Critical Race Theory (CRT), a body of work that emerged in the late 1980s in American law schools to challenge the role law has played in authorizing and entrenching racial inequality. Part of the backlash against CRT is the framing of that literature as a “suspect” and “invidious” body of work that effectuates racism against whites and creates racial tensions, racial antagonism, and racial balkanization in society. It is precisely these critiques of CRT that the African American Policy Forum launched its #Truthbetold Campaign to contest.

But it is also true that the attack on CRT is less about CRT per se. It is about a longstanding opposition to, and campaign against, antiracist thinking, teaching, and organizing. This is one of the central insights of the #Truthbetold Campaign. Indeed, so broad are the attacks on CRT that even mainstream equity, diversity, and inclusion programs within universities and workplaces have been subject to critique and contestation. The scope of these ongoing efforts to delegitimize various forms of antiracism is one example of how the social regime of strict scrutiny targets both bodies of antiracism and bodies of Black people.

Still, against the backdrop of the current moment of “racial reckoning,” it is reasonable to query whether the attack on CRT is something of an aberration, a project of the extreme right that should not obscure the profound ways in which George Floyd's death and the movements for Black lives have shifted the racial landscape. Under this view, the regimes of strict scrutiny I have described are being relaxed. To support this claim, one might point to the fact that many people would agree with the proposition that there are “compelling” reasons to hear what Black people are saying about the subordinating conditions of Black life. One might also note that across the United States, even school children can be heard articulating some version of the mantra “Black Lives Matter. These developments suggest that meaningful spaces exist for Black people to articulate and realize their aspirations for racial justice. On some level, all of that might well be true.

But it might also be true that the moment of “racial reckoning” in which we find ourselves exists within, rather than outside of, the racial economy of strict scrutiny. From that vantage point, the answers people have offered to the question--“how should we make Black lives matter?”--have not escaped the reach of strict scrutiny. Instead, they have triggered that “heightened” standard of review and its “means” and “ends” disciplinary apparatus. Thus, even assuming, as I did earlier, that consensus is emerging across society that there are “compelling” reasons to make Black lives matter, those “compelling” reasons exist within the framework of strict scrutiny; moreover, they say nothing about the “narrow tailoring” of permissible “means” by which we might pursue those “compelling” “ends.”

Think back to the height of discussions about “Black Lives Matter” in 2020. It was in that context that Californians voted against repealing Proposition 209, an amendment to the California State Constitution that eliminated race-based affirmative action within the state. That outcome suggests that many Californians who support the idea that “Black Lives Matter” nonetheless voted against expanding educational opportunities to Black people.

Reparations present another example of how the social regime of strict scrutiny is implicated in the current moment. Across the United States, debates are being had about whether and to what extent Black Americans are entitled to reparations. That controversy can be mapped onto the “means” and “ends” prongs of the social regime of strict scrutiny in this sense: Many people would reject either the claim that there are “compelling” reasons for the government to issue reparations to Black Americans or the claim that reparations are a “narrowly tailored” mechanism through which to make Black lives matter. From this perspective, the current moment of “racial reckoning” does not necessarily mark a departure from the social regime of strict scrutiny. Instead, it might mark the mobilization of that scrutiny to ask whether there are “compelling reasons” to support Black people's pursuit of justice and liberation, and whether the “means” chosen to effectuate those “ends” are “narrowly tailored.” In that regard, and to borrow from Robin D. G. Kelley, the current moment in which we find ourselves is not structured to accommodate Black people's “freedom dreams.” It is structured to manage and discipline them. That is why now, as in the past, free dom dreaming on the part of Black people requires not only radical imagination and courage, but also hope.

Honorable Harry Pregerson Professor of Law, UCLA School of Law.