Article by Dwight L. Greene
This Article addresses some ways in which both class and color privilege whites and burden people of color. Race politics are responsible in part for the privileged white caste of the federal judiciary. The doctrines of colorless individualism developed by these courts obscure the race privileging embedded within them. In the criminal law, for example, with respect to some crimes, people of color are targeted more frequently than whites. Once targeted, racist expectations adversely affect the choices of people of color and the responses of the judiciary to those choices.
This Article challenges the pluralistic ignorance of Justice Scalia and some of his colleagues. In Part I, Justice Scalia's view of ethnic whites as not privileged is juxtaposed through paradigmatic stories with this black man's view of America. Parts II and III discuss how the privileges of color and class inure to the benefit of whites, including white “ethnics.” Partially as a result of race politics, federal courts have remained demographically underrepresentative and pluralistically ignorant. Part IV suggests that judges reconcile persistent disparities between blacks and whites by drawing on shared myths to create doctrines of colorless individualism. Part V develops a perspective on the latent roles of color in contemporary criminal constitutional law to suggest how color, not individual behavior, privileges whites and burdens men of color. Florida v. Bostick is used as a paradigm. By pretending color no longer matters in the choices of whites and blacks, the courts legitimize police targeting of young black males who then supposedly “consents” to be searched.
Part VI provides a menu of alternatives to colorless individualism. These suggestions include developing a more diverse judiciary and using a more situational, race- and class-inclusive reasonable person standard. Recognizing that these remedies will probably not be implemented in the short term and, if adopted, would not completely cure either the biased targeting or systemically pressured consents, this Article suggests an oppositional strategy. Judicial doctrines based on mythic colorless individualism should be used against the reality of racial targeting and power-induced consents. With as much publicity as possible, people of color should be taught how to exercise their constitutional rights through passive and lawful resistance to the police when they target people of color and pressure them to consent to searches. By exercising their formal individual rights to choose not to cooperate, people of color whether innocent or guilty can Just Say No.
Such an educational program ought to increase the rational exercise of the right to Just Say No (to the police) whenever feasible. In addition, well-publicized rights training programs should affect the outcome of suppression hearings. I suggest that judicial expectations about the legal sophistication of the group to which a defendant belongs impact credibility determinations. If courts perceive the defendant to be a member of a group that is legally sophisticated, such as law students, or part of a group that does not cooperate with the police, such as organized crime, then police testimony concerning consensual searches may be evaluated more rigorously. To the extent judicial group expectations can be reconstructed by judicial awareness of well-publicized training programs, the credibility playing field between the police and allegedly consenting people of color can be somewhat leveled. That is, the expectation that people of color targeted by law enforcement are Tonto-like dolts can be somewhat negated. Deprived of the illusion of chosen cooperation, colorless individualism in this area of criminal law enforcement can be demythologized. Faced with a new construction of reality, society, including the police and the courts, can continue its attempts to justify legacies of racism, or it can acknowledge them and change the administration of justice.
About the Author
Dwight L. Greene. Professor of Law. B.A., 1970, Wesleyan University; J.D., 1974, Harvard University.
Citation
67 Tul. L. Rev. 1979 (1993)