Dear Court, You’re Wrong. Love, Elizabeth

In 1926, the Supreme Court was in a striking-down laws mood. But then something kind of weird happened. The Court heard this case, Euclid v. Ambler Realty, about zoning. Though zoning seems totally normal verging on boring today (apologies to any burgeoning city planners), at the time whether zoning was constitutional was an open question. Everyone expected the Court to strike down the law because, as I said, the Court was in a striking-economic-laws-down mood. So the Court heard the case. Arguments were made. Opinions drafted. Jelly beans in the bowl I imagine sitting in the middle of the Court’s conference room table consumed. And then, suddenly, and bizarrely, the Court called attorneys back to re-argue the case. Opinions were drafted again. Presumably more jelly jeans gnawed. And the Court upheld the law.

When we studied the case in my property class, we puzzled over this. Why did the Court uphold this law? We parsed the constitutional language, coming up with various explanations of property rights, economic development, and so forth.

And all the while, I kept thinking there was another, simpler, more likely explanation: zoning was (is) segregating affluent white people from poor people of color. The Court – nine white, affluent men – was not about to tell other white, affluent men they couldn’t keep poor black people out of their neighborhoods.

The problem is that if you want to win a case, you can’t very well go up to the Court and say: “Hey folks and may it please the court, almost all your precedent is wrong, and by the way, also you are racist/classist/sexist.” If you want to win in court (and, by the way, do well on exams) you have to speak in the courts’ language. Thus it’s crucial for professors to teach, and me to learn, the letter of the law. Even though I recognize that, it was nonetheless frustrating to recognize that while the law was this purportedly neutral thing, the poor/of color/female person almost always lost. I find it rather difficult to believe that’s a coincidence. During my first year, it was tricky to both learn the law and retain that critical instinct.

Then this past semester I took a seminar where all we did was critique everything we got our hands on: critical race theory (“CRT”). CRT goes like this: race isn’t biologically real; it’s a social construction. How is law implicated in that construction? How does the law create race?

Our first week’s reading (there was so. much. reading.) demolished within a few pages any idea that our law was neutral, and recognized that it was often an instrument of power (rule by law) rather than rule of law – the law, after all, exists only when operationalized by people, so of course it is inevitably defined by their conceptualization of the world and their fellow raced, classed, gendered citizens. When I read that, I almost fist pumped the air. I had these inchoate thoughts percolating all of my first year, and here they were, being articulated by people with about nine times as many degrees as me and much more beautifully written sentences. I was thrilled (or as thrilled as one can be while doing an enormous amount of reading. so. much. reading.).

I love critical classes like CRT because they give me the chance to exercise my wait-that’s-not-right muscle. Case-in-point: Dandridge v. Williams. We read that case in my first year constitutional law class, and read it again in CRT. Basic facts: Maryland (in the 1970s) based a family cap law for its cash assistance recipients. On a cash assistance grant, the amount of money you get depends on how many kids you are, because (obviously) each kid costs you more money. But in Maryland, after this law was passed, they capped the grant, so at a certain point, you’d stop getting more money, no matter how many dependents you had. This meant that kids in big families got less aid than kids in small families, which means kids in big families were treated worse than kids in small families, and that’s a constitutional problem. In my first year constitutional law, we discussed the constitutional legalese at work here. But when I read that case, I thought: Huh. So, this is the welfare queen trope at work. Maryland decided that poor women of color were having child after child to (ever-so-slightly) increase their cash assistance grants, and we have to stop that.

Seems pretty unconstitutional to me.

But again, were I arguing Dandridge at the Court, I couldn’t very well say, “Mr. Chief Justice and may it please the court, Maryland is racist/classist/sexist and this law is total nonsense.” At best I might be able to say, “This law is not rationally related to a legitimate government interest.” In CRT, though, it was a practically a given that this law, and the Court’s opinion, was permeated with all the -isms. We talked about why the Court didn’t even address race, or class, or gender, why it was all buried under legalese, what the Court was really doing, and how it furthered inequality.

Such critical discussions are important. Because while yes, I am at law school to learn the law, I am also at law school to learn how to change the law, how and why inequalities are built, and how they might be ameliorated. I am going to keep learning the black letter law, as its called, such that I can argue in the Court’s language, but it is, I think, equally important to keep ahold of my instinct to say: Hey, Supreme Court. I think that’s wrong.


shrug posted on December 12, 2012 at 11:37 pm

Racist and classist judges were once law students. And law students will eventually be judges. Look around your institution and take a guess why the court ends up the way the court ends up.

Froggy posted on December 14, 2012 at 1:08 am

Ah yes, the white liberal law student who wants to save the poor minority. Let me just say you guys at BU NEVER fail to make me laugh, or chuckle.

The way you see the world: ‘Come here person of color and let me tell you what is wrong with you and how I am going to fix you.’ I find it just a bit hypocritical that so many of get bent out of shape when men want to tell women what to do with their wombs, but find no irony in using your white privilege to tell minorities how or what they should do.

Yes, I am a minority and I attend BU law. This should narrow it down as there are only 5 or so of us at the law school, excluding, of course, the LLMs.

emcintyr posted on December 18, 2012 at 10:30 am

Thanks for your comments, all. Points are well-taken.

We are, and I am, tied to the power I critique – the legal profession, law firms, and law schools remain disproportionately white. How can white people credibly advocate for racial justice when every action takes advantage inherently (and arguably intentionally) takes advantage of racial privilege? I’m not sure how to answer that question, and it is one I struggled with during my CRT seminar and one I struggle with today. That’s why I wrote this post: because BU has provided us with a really important space to critique and challenge. I’m trying to use that space, and this one, to learn.

Froggy, I do want to address your point specifically – I agree with you, but you attack an argument my post did not make.I did not argue that people of color need to change. To the contrary, I argued that is our white system of laws and judges that is flawed, and that I appreciate the space within law school to consider those flaws. I argue that our laws that needs to be fixed, not the people upon whom those laws act.

Thanks again for the critique and comments – I appreciate it.

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