Vol. 3 No. 3 (March, 1993) pp. 24-26

RACE AGAINST THE COURT: THE SUPREME COURT & MINORITIES IN CONTEMPORARY AMERICA by Girardeau A. Spann. New York: New York University Press, 1993. 266 pp. Cloth $40.00.

Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.

Girardeau Spann's RACE AGAINST THE COURT is an important book that is well worth the reading, but one that in the end accomplishes both too much and too little. Spann accomplishes too much in his highly critical "deconstruction" of the possibilities of the Supreme Court's acting in a countermajoritarian capacity. He accomplishes too little in failing to be self-critical and thereby not "deconstructing" both his own thesis and his often unsubstantiated assertions.

The thesis of RACE AGAINST THE COURT is that the Supreme Court "functions to perpetuate the subordination of racial minorities in the United States" (p. 50). This thesis is offered as the rival of the "traditional model of judicial review," which, according to Spann, insists that the Court is supposed to be sufficiently "above the inevitable shifts that occur in the prevailing political climate" so as to protect minority rights from majoritarian exploitation. Spann postulates that the discrepancy between the traditional model and actual Supreme Court performance is "sufficient to preclude any meaningful difference between Supreme Court adjudication and ordinary politics" (p. 2).

From the beginning, the reader should note and remember that Spann bases his thesis on structural reasons, rather than on conspiracy or consciously racist motivation. If the reader keeps that in mind, then any imputation by Spann in the balance of the book of a conscious design or purpose by Supreme Court justices to subordinate racial minorities will be recognized as inappropriate.

In rejecting the "traditional model" of judicial review, most of Spann's analysis is unexceptionable. His beginning is to question the sort of mechanical jurisprudence sometimes inferred from Justice Robert's opinion in UNITED STATES V. BUTLER, while nonetheless noting that the framers may well have intended a form of mechanical review with little judicial discretion. His main argument, however, is that while the framers intended a variety of structural safeguards against the "tyranny of the majority" (separation of powers and federalism), it was the exercise of judicial review that over time eroded those safeguards and left the Supreme Court as the sole protector of minority interests. Yet, if the Supreme Court is to be effective in its countermajoritarian role, it must be effectively insulated from majority pressure.

Not surprisingly, Spann argues that life tenure and salary safeguards are insufficient to insulate and protect the members of the Court from majoritarian pressure. Instead, the effective use of judicial review for the protection of minority interests must rest on the "judicial tradition of principled adjudication" (p. 17).

Spann then proceeds in several chapters to criticize the possibilities of the traditional model of judicial review. He begins (in Chapter 2) by suggesting that the process of federal judicial selection gives us federal judges who are so profoundly predisposed toward majoritarian values that they are unlikely and unwilling guardians of minority interests. This is one of the weaker points in the book. While it is true that federal judges have mostly been white middle-age, middle-class males, it is a form of naive behaviorism simply to assert that such social characteristics obliterate all meaningful differences in political, economic or moral values amongst sitting federal judges. While it is easy for a president to select federal judges who seem to embody majoritarian norms and cultural preferences, it is also possible to select and confirm federal judges who may have transcended the narrow limits of their class origins through a variety of life experiences. Of course, such nominations do require a president and a Senate who are inclined toward such nominations.

Spann's next chapters (Chapters 3-5) are

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the best part of the book. His "deconstruction" of the possibilities of principled adjudication represents highly skeptical and highly critical analysis at an excellent level. Noting that legal realism of the 20's and 30's "demonstrated the futility of relying on linguistic conceptual analysis to arrive at correct case outcomes," (p. 59) he seeks to demonstrate as well the futility of searching for objective outcomes from functional policy analysis. He succeeds in demonstrating, at least, that objective outcomes are difficult and elusive. His analytic difficulties come, however, in Part II of the book.

Because of his conclusion that principled counter- majoritarian decision making by the Supreme Court is not possible, he concludes that the Court, in the long run, is just another institution whose commitment is to victory of majoritarian interests. Then comes another of his unsubstantiated assertions: "the contemporary majority in the United States favors the continued subordination of racial minorities" (p. 82). While that may be true, surely his assertion demands the same rigorous analysis that Spann has applied to those who assert the validity of the traditional model of judicial review. And his next step is equally shaky. If the Supreme Court is incapable of protecting minority interests, then the appropriate minority response is to resort to politics in other arenas.

Spann's analysis in Part II of the possibilities of minority success in legislative arenas seems naive in the sense that he fails to take proper account of who has power in such institutions -- in effect who gets, what, when and how. Whether in courts or legislatures, abstract theories rarely determine outcomes. Among other things, we need to know who the office holders are (and their values), who attempts to influence them (and on what issues), and what the competing interests and conflicts may be. Sometimes courts and sometimes legislatures may be the most appropriate arenas.

Spann argues, however, that the Supreme Court's exercise of judicial review has structured the politics of racial minorities in three unfortunate ways. His first point is that the Supreme Court's decision in BROWN V. BOARD established a dependency relationship between racial minorities and the Court. The second unfortunate outcome is that the Court has centralized political conflict, especially in the instance of affirmative action, so that racial minorities have been rendered less effective at local levels. The third negative outcome is that the Court has legitimated certain assumptions about the nature of rights, about who has the authority to determine rights, and about the kinds of claims that minorities can make against majorities.

In making such claims Spann is usefully provocative, but it is evident that his assertions could be subjected to the same sort of skeptical, critical analysis that he has applied forcefully to others. For example, his assertion that the BROWN decision "is better understood as a veiled majoritarian effort to perpetuate minority subordination" seems to imply a conscious racist design and purpose on the part of the Supreme Court, rather than an outcome determined by structural factors such as the criteria and process for selecting Supreme Court Justices. This is not to suggest that Spann's conclusions are wrong, but only that they are not rigorously substantiated as he requires of others.

With regard to the prospect for minority successes in local rather than national politics, Spann may be right, but again we need to know which locality and which issue and at what time. Anyone who lived the South before BROWN or anyone who invokes principles of the Bill of Rights and the Fourteenth Amendment in the South even today -- even with Reagan and Bush appointees on federal benches -- knows that many defeats were and are certain in state or local legislative arenas, while federal courts then and now sometimes offer the only prospect for success. To be sure that often is due, even today, to the fact that many local practices are so clearly outrageous and so clearly unconstitutional, that even the most ill-disposed federal judge may be

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forced to act.

A few final points: At the end Spann several times attributes conscious design or purpose in the Supreme Court's alleged subordination of racial minorities. For example, he repeatedly refers to the Court's "veiled majoritarian manner" and he suggests that the Court has "mastered the extremely sophisticated strategy of dressing minority losses in the attire of minority gains when it serves majoritarian ends to grant such apparent concessions" (p. 161) as it allegedly did in BROWN. And he concludes that the Supreme Court "CANNOT" serve in a countermajoritarian capacity, because it is controlled by judges who simply represent the elite political majority. In the end Spann concludes that the Supreme Court is simply another "regressive" social institution. That the Court has sometimes been "regressive" in no doubt true. That it is essentially regressive is another matter altogether -- and one which requires more proof than this book offers. But to be fair, we do owe Spann our thanks for the usefully provocative manner in which he suggests it!