Race, Racism and the Law: Fran Lisa Buntman's "Race, Reputation, and the Supreme Court"

The following article is excerpted from Race, Reputation, and the Supreme Court: Valuing Blackness and Whiteness by Fran Lisa Buntman. What is the impact of blackness and whiteness on reputation and in the legal system?

"[I]f He be a Colored Man . . . He is Not Lawfully Entitled to the Reputation of Being a White Man."

In the United States, being black, or not being white, has long been seen as a sign of criminality, or at least criminal propensity. The notion of racial profiling, recently the subject of considerable public attention, assumes that police officers, among others, can successfully, if illegitimately, use a person's race as an indicator of likely criminal conduct. Racial profiling usually refers to the assumption of possible law-breaking by African Americans or Latino Americans, although it can be applied to a person of any perceived race. Most people are unlikely to admit to the role that a person's skin color plays in their assessment of their worthiness or credibility. In practice, however, for many people and not just police officers, race is frequently an indicator of suspicion, usually in the case of people of color, or the lack of suspicion, usually in the case of whites.

Practices such as racial profiling cannot be understood without recourse to broader considerations of the ways in which American discourses shape discussions on the link between race and reputation. Assumptions made about the character of people because of their skin color are assessments that assume a correlation between race and reputation. These racial reputations, however, are not confined to issues of presumed innocence or criminality. For instance, common racial stereotypes assign to African Americans reputations of athletic prowess or to Asian Americans reputations of mathematical skill. Reputation is a social attribute that refers to how a person is assessed and measured and usually reflects generalized, common appraisals about the person or group's standing and acceptance.

Reputations may be positive or negative. To have a good reputation is to be well-regarded. Achieving or sustaining a good reputation can be based on a person's actions or inactions, ideas or practices. Reputation can also be imputed by signifiers and symbols. In the United States and elsewhere, one of those signifiers of reputation was – and in different and similar ways, still is – race. Americans came to "recognize[ ] the reputational interest in being regarded as white as a thing of significant value, which like other reputational interests, was intrinsically bound up with identity and personhood."

This article explores aspects of the United States Supreme Court's discourse regarding race and reputation, examining both consistencies and shifts over time. It begins with a discussion of slavery, focusing on the Scott v. Sanford decision. The impact of the Reconstruction Amendments is discussed in the context of the Civil Rights Cases and Plessy v. Ferguson. Decades later, Brown v. Board of Education marked a well-recognized and decisive shift in the way the Court reassigned both racial rights and reputations. In analyzing post-civil rights movement era cases concerning jury composition, affirmative action, and the death penalty, however, this article argues that the Court has retained a world view, reflected in its discourse, in which whites and African Americans are assigned very different reputations. Thus, the challenge of obtaining equality in rights and reputation is carried into the 21st century.

The Court's attitudes toward the meaning of race, which is narrowed in this article to the meaning of blackness and whiteness, are important for at least two core reasons. First, the Court's pronouncements affect the lives of real people. For instance, as the Court interprets laws or the Constitution to expand or contract rights, real people experience actual effects in their lives. Second, the Court not only reflects societal views, but shapes, legitimizes, or challenges them. Southerners and Democrats therefore embraced the majority decision in Scott, while Northerners and Republicans favored and even disseminated Justice Curtis's dissent. Nearly a hundred years later, Brown announced to segregationists that their views put them at odds with the Constitution, and thus the nation. Ideas once considered radical – from the principle of racial equality to the right of people, even criminal suspects, to know their legal and constitutional rights – are often quickly incorporated into the mainstream and hegemonic culture once the Supreme Court asserts them as part of what the Constitution requires, or even more crudely, as part of the meaning of being American.

. . .

The differential reputation of whites and African Americans in United States history and politics has played itself out in the field of law, including the decisions of the Supreme Court. The nadir of the Court's discourse on race and reputation was during slavery, especially as displayed in the Scott decision. But the Court's reluctance to fundamentally repudiate a view of white superiority and black inferiority was evinced in both the facts and the language of decisions which declined to accord African Americans and other people of color their full rights and the associated reputation of human equals.

While the Court used Brown to challenge not just segregation and inequality but the reputation of inferiority which undergirded it, the same degree of introspection or political commitment has not marked the more recent Supreme Court decisions. Under the guise of race neutrality, colorblindness, and equal protection of the laws irrespective of race, and using an analysis of affirmative action and an instance of capital sentencing review, we see that the Court has again valorized whites and the reputation of whiteness, and accepted a denigration of black life and African American repute.

While assessments of the Court's comments on race profiling itself are beyond the scope of this article, it is clear that the Court's discourse contributes to a world view in which racial profiling and other acts of civil and criminal justice discrimination can find legitimation.

Last modified: Friday, March 22, 2019, 12:05 PM