Introduction: Three Responses to Rewritten Opinions in Critical Race Judgments
A Review of Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.
Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig. Cambridge: Cambridge University Press. 2022. Pp. xxx, 694. Cloth, $84.75; paper, $39.19.
Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law invites us to imagine. Imagine what could have been; imagine what could be. Imagine a legal landscape where judges not only consider but actively seek to dismantle the racist regime that has preceded them. Such a landscape may seem impossible, particularly given the recent polemicization of critical race theory.1Fabiola Cineas, What the Hysteria over Critical Race Theory Is Really About, Vox (June 24, 2021, 10:50 AM), https://www.vox.com/22443822/critical-race-theory-controversy [perma.cc/YCN2-XTW7]. But Professors Bennett Capers,2Professor of Law and Director of Center on Race, Law, and Justice, Fordham University School of Law. Devon W. Carbado,3The Honorable Harry Pregerson Professor of Law, UCLA School of Law. Robin A. Lenhardt,4Professor of Law and Dean for Diversity, Equity, and Inclusion, Georgetown University Law Center. and Angela Onwuachi-Willig5Dean and Ryan Roth Gallo & Ernest J. Gallo Professor of Law, Boston University School of Law. have invited us to imagine. Through a collection of thirty-seven rewrites of landmark Supreme Court (and a sprinkling of lower federal court) cases using a critical race theory lens, the rewriters show us that racial consciousness in judicial decisionmaking is both possible and necessary. For those seeking a way to use the law as a real tool for social change, Critical Race Judgments provides an essential manual. Sitting alongside the 2016 Feminist Judgments collection,6 Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford eds., 2016). this new body of scholarship proves that the law is not—and has never been—neutral or objective, and that through this recognition we can create a more just legal system.
Critical Race Judgments opens with Derrick Bell’s imagined dissent in Brown v. Board of Education. Bell’s spirit and legacy animate the pages that follow. The choice to open with the dissent also sets the stage for a collection of rewritten opinions that confront American law’s fundamental relationship with white supremacy. Bell dissents from a decision often celebrated as the high mark of America’s march towards racial equality. In so doing, he imagines the path not taken in Brown: a true account of America’s racial hierarchy, and a choice to reckon honestly and deal earnestly with the change required to upend that hierarchy. Bell’s candid accounting unfolds throughout the subsequent opinions.
The book is structured around five themes: Membership and Inclusion, Participation and Access, Property and Space, Intimate Choice and Autonomy, and Justice. That structure works alongside the opinions themselves to reorient our understanding of race in American law. By placing judgments from seemingly disparate doctrinal areas alongside each other, and by placing opinions obviously inflected with race next to those less obviously so, the collection draws out the transsubstantive—sometimes overt, but often silent—role that racial hierarchy plays in American law. Critical Race Judgments contains many (in)famous cases, but also a number of lesser-known selections. That choice, too, reveals the omnipresent role of race in American law. And, while the book primarily features rewrites of cases from the U.S. Supreme Court, the selection of a few cases from lower federal courts works to a similar effect.
Though we would have liked to commission responses to all thirty-seven opinions in the collection, for the sake of space, time, and our editors’ sanity, we landed on three that we thought exemplified the work being done in Critical Race Judgments. We wanted to showcase the doctrinal breadth covered by the opinions, as well as the sweeping implications and possibilities for practitioners, professors, and judges who rely on these decisions in their daily work. To that end, we proudly offer Reviews of Rose Cuison-Villazor’s rewritten Chae Chan Ping v. United States, Matthew Fletcher and Kathryn E. Fort’s rewritten Adoptive Couple v. Baby Girl, and Mario Barnes’s rewritten McCleskey v. Kemp. Our Reviews present creative responses to the newly minted analysis in each rewrite that we hope readers will find informative, lively, and—most of all—useful in their engagement with the law.