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March 06, 2005

Antisubordination

Balkin notes:

Speaking of liberals, at least Justices Ginsburg, Breyer and Souter have a principle that distinguishes this case from Grutter. It is the antisubordination principle-- racial classifications are suspect because they help perpetuate the subordination of racial groups. Where the majority acts to undo the effects of past subordination, courts can apply somewhat less scrutiny (although not minimal scrutiny) because what the state is doing is not inconsistent with the goal of antisubordination. That explains the Court's deferential attitude toward admissions committees in Grutter. However, when the state uses racial classifications for mere administrative convenience, as in this case, its goals are orthogonal to alleviating social subordination, and the usual rule of strict scrutiny should apply. Obviously, one could object to this line of argument at several places, but on the whole it seems somewhat more principled than what the other Justices are doing.

This is the case of the black prisoner who felt that he was being discriminated against because he was segregated by race during his first 60 days in prison. Apparently, this practice was initiated by the California prison system because, it had determined that a history of racial antagonism might subject the prisoners to abuse. So it presumed due to this history that the class of Americans who end up in prison are more likely to be racially antagonistic and start fights if they were bunked with mates of a different racial background. So until prisoners could be individuated, they would be racially segregated.

Anecdotally, there are white supremacist and all other sorts of ethnic gangs in prison. So the chance that you might be bunked with a member of a racial gang sounds like a very real possibility. Johnson objected to the separation by race and against the prejudice applied to him. To my ears it sounded like complaining about the color of your fatigues in a war zone, but since our courts obviously have plenty of time for such matters, there would sooner or later have to be a decision.

The case went to the US Supreme Court which decided in the favor of California. Balkin traces the reasoning. Thomas and Scalia say that a prison's gotta do what a prison's gotta do. Ginsberg, Breyer and Souter say the prison isn't segregating for the purpose of subordination so a strict scrutiny isn't required. I agree with both angles. What surprises me is that Balkin, giving the nod to the principle of antisubordination, would compare this case to Grutter, the Michigan Affirmative Action decision case.

He seems to be suggesting that there might be a singular principle regarding race against which all sorts of segregation matters might be judged whether they involve convicts or college students. I'm not sure there is or that there should be with regards to the law. I don't have a legal theory for this, but it makes me uncomfortable in a way I can't quite describe.

I think the reason for this might actually be dangerously biased, and yet I still believe it to be right. The simple answer to the stupid question of 'What do black people want?' is 'Anything worth having.' But the full answer goes a little bit more like this from the SCAA FAQ (of which I used to be the keeper):

  • Black people want everything worth having, and the other things too. We want to have it as black people, but only when we say so. We will do anything it takes to get it, and anything else we feel like doing whether or not that's useful. You can't figure out our reasons unless we tell you, and if we don't feel like telling you, so what? And if you guess, so what?

  • Black people want to be invisible, except when we don't.

  • Black people want to be called African Americans, so forget everything you've heard about 'black people'.

  • African Americans want to be black, except on those occasions we feel like that's not necessary.

  • Black people want to be treated, most of the time, as follows.

    All of the above is subject to change without notice, some restrictions apply, participating blacks only, your mileage may vary, see individual blacks for details and specifics, void where prohibited, you must be 18 or older to play.


    • In other words, it's a very squishy human thing, but you can generally expect to get the gist of it if you pay enough attention. Legally, the above makes no sense whatsoever, but it makes perfect sense when you think about it and talk to enough blackfolks about it.

    For what it's worth, no matter how we individuate ourselves as Americans, we are always tied to American history. And it seems to me that there has not yet transpired any period of time long enough for what the African American experience symbolizes other than antisubordination. For at least 3 more generations, blackfolks are going to be bogarding. We will be grasping on to our claim on this place and all the respect we can muster. For a long time, our individual meaning will be subordinated to this historical theme. Even the universal disclaimer shouts it.

    Apparently, even the black convict is chasing after equality with white convicts, and his case goes to the Supreme Court. Damn!

    Posted by mbowen at March 6, 2005 02:45 PM

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