Law 165 - Critical Race Judgments: Critical Race Theory and Supreme Court Decisionmaking
Devon W. Carbado
The Honorable Harry Pregerson Professor of Law
J.D. Harvard, 1994
“Is it possible to be both a judge and a feminist?” So opens Feminist Judgments, a collection of key decisions in English law rewritten by feminist legal scholars. It is a provocative question, and one that prompted a group of Critical Race Theorists to ask another. “Is it possible to be both a judge and a Critical Race Theorist?” For some, the answer is obvious: no. Recall the controversy surrounding the suggestion that a prospective Supreme Court justice might have unique experiences as a “wise Latina” that could productively shape her jurisprudence.
The reason some people might find the notion of a judge who is also a Critical Race Theorist unfathomable is not because Critical Race Theorists have nothing to say about legal doctrine. Instead, it is because what Critical Race Theorists have to say has become, in some sense, jurisprudentially unspeakable. In fact, several Justices on the U.S. Supreme Court have suggested that simply acknowledging and speaking about race is problematic. This see-no-evil-hear-no-evil approach to race and law has facilitated and legitimized the perception that Critical Race Theorists are “beyond all reason.”
This Modes of Legal Inquiry elective will challenge that assumption. More precisely, the course will provide a concrete indication of what a Critical Race Theory approach to constitutional law might look like. The course’s overarching aim is to demonstrate not only that Critical Race Theorists have something to say about specific legal regimes and disputes, but that what they have to say can be doctrinally processed within the logics of standard legal principles like precedent and stare decisis. Students should leave the class with a very clear sense that there are Critical Race Theory ways of “doing” (and not just critiquing) law.
|Devon Carbado||20S||165||LEC 3||Unscheduled||1.0||No||No|