The tide is shifting. The forty classmates who definitely hated me prior to today are slowly warming up to me. Why? Well, for one thing - my "arch nemesis" in class - (the younger than me white guy [I'm white] I keep arguing with about critical race theory) becomes more unlikeable every time he opens his mouth. He is super into the idea of Supreme Court Justices making laws based on race, but for some reason he cannot stomach the idea of a Middle School (serving ages 11-13) providing childcare for their students (WHO HAVE CHILDREN OF THEIR OWN) so that these 11-13 year old parents can get a quality education, being constitutional.
Although "in middle school childcare centers" may be somewhat controversial - his firm belief that to permit such day care centers would be "bad for the country" lost him some favor with several Mexican-American students and women in class.
So, he's helping me out. Also, now that we are digging into the cases (as opposed to what we have been doing in class so far, which is studying different types of judicial making processes) the material is becoming more concrete. Applying the principles we have been discussing to real-life examples is helping us figure out if we like this Critical Race Theory thing, or not.
Our great Professor, Professor Roy L. Brooks, wrote the book (actually both books) that we are using in class. The books are: (1) Structures of Judicial Decision Making from Legal Formalism to Critical Theory and (2) Diversity Judgements: Democratizing Judicial Legitimacy.
Here's my take-away from class so far.
There are essentially three types of Supreme Court Justices:
Justice Positivism - wants to follow existing legal precedent. Wants to follow, not lead. Key virtue is consistency in process.
Justice Pragmatism - also wants to follow precedent but wants to achieve "the just result" and will use the existing precedent to do so.
Justice Nominalism - bases their holding solely on their sense of morality and their own cultural leanings.
Critical Race Theory asserts that none of these Justices are capable (or will) make sure "outsider" values are considered in any given case. The Critical Race Theorist wants the Justice to start and end with the following question: "How does this law subordinate African Americans?" From there, the CRT Justice would fashion a holding that would ensure African Americans are not in fact subordinated by the law. CRT is slightly more complicated than that - there are a few more layers - but this is a sufficient overview for right now.
Ultimately, I like Critical Race Theory because it has enhanced my understanding of certain perspectives of which I otherwise would not have been aware, but I still think - for now - that the concept dissolves into itself as a matter of logic. You might say, I am a judicial positivist, because I want to believe that our law is currently neutral. The positivist thinks the law has landed in a good place and wants to keep the system going.
Today in class, I argued that a good judicial making process would include a positivist, pragmatist, and nominalist analysis - all in the same opinion. I said that a Supreme Court Justice should not "hide the ball" or be coy. She should clearly state her view from the positivist perspective, the pragmatic perspective, and the nominalist perspective.
Professor responds, "ok, fine Mr. Eskow, but how then do you have a principled way of deciding WHICH perspective should DECIDE the outcome of THIS case?"
I responded that the Justice should explicitly state which perspective controlled the case. The principle is "disclosure."
We may not be able to create the perfect system of judicial decision-making, but if we ask Justices to value "full-disclosure," we will at least be in a position to accurately analyze what is happening.