Like me, I imagine that many young, idealistic, progressive law students begin their legal educations under the impression that federal courts act—to use Professor Michael Klarman’s witty, if not slightly sardonic turn of phrase—as counter-majoritarian heroes. As such, federal judges are just chomping at the bit to protect marginalized minorities from the pathologies of majoritarian politics.
Before long, effective legal education thoroughly discredits this conception of the federal courts. In its stead, a worrisome image stews in the minds of young progressive law students. Federal equal protection jurisprudence provides some of the most critical details of this picture. From cases like Washington v. Davis and McCleskey v. Kemp, we learn that equal protection tolerates laws that apparently burden racial and ethnic minorities disproportionately—that such disparities almost always do not count, in a constitutional sense, as unequal protection of law. That even if it looks, walks, and barks like constitutionally problematic racial inequality, it is not really such racial inequality. Indeed, the Constitution still permits it. And it is through this constitutional rubric that federal courts interpret and apply the law of the land each day—affirmatively sanctioning institutions that perpetuate inequalities that are inconsistent with fundamental principles of justice.
But sometimes, the federal courts surprise us. Just sometimes, through a stroke of creativity and a heavy dose of indignation, a federal court affirmatively recognizes the judicial role in perpetuating troubling racial inequalities and declares, “Enough is enough.” Recently, the Sixth Circuit made such a declaration in United States v. Blewett. In particular, the Court held that the Fair Sentencing Act (FSA), which reduced the 100:1 sentencing disparity between crack and powder cocaine to 18:1, must be fully retroactive to comply with the constitutional requirement of equal protection of laws. In other words, Blewett ruled that defendants who were sentenced before the FSA was implemented are entitled to be resentenced as if the FSA were the law when they were initially sentenced.
The most remarkable—and refreshing—element of the court’s analysis is its frank recognition of the judicial role in the “perpetuation of…racially discriminatory” policy and law. The core of the court’s argument is based on the following creative—and quite intuitive—logic: (1) through the FSA, Congress officially recognized that the 100:1 ratio yielded disproportionately harsh sentences for black defendants; (2) continuing to affirm sentences meted out under this ratio counts as knowing and intentional approval and implementation of a racially discriminatory law; and (3) such judicial behavior is prohibited by the Equal Protection Clause. The court succinctly states this theory as follows:
If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A ‘disparate impact’ case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.
Reduced to its essence, the court’s argument is that once a judge knows that she is applying a law that will most likely burden racial minorities more substantially than it will whites, she becomes complicit in a regime of racial discrimination. This, a judge should not have to do; this, the Constitution won’t tolerate.
And therein lies the power of the Blewett court’s reasoning. If only for the purposes of the issue before it, if only for this particular decisional moment, the court reckons with reality. It imagines judges not merely as neutral, technocratic umpires calling legal balls and strikes, but as active players in a system that far too often institutionalizes and perpetuates concerning inequalities. It rejects the stale, unrealistic, but pervasively accepted conception of racism as presupposing purpose in favor of a concept of racism that recognizes the power of nominally neutral institutions to perpetuate racial oppression through the application of facially neutral criminal laws to a society rife with racial inequality.
Yet this is exactly why the Blewett decision likely won’t survive a rehearing en banc or review by the Supreme Court. Washington v. Davis, McCleskey, and their progeny restrict constitutionally problematic racial discrimination to the realm of the purposive, a universe that does not welcome judicial attacks on subtler—but far more pervasive—forms of institutionalized racism.
The predictable fate of the Blewett decision shouldn’t be a cause for celebration. Instead, it should be a cause for alarm—a reminder that our constitutional system permits the problematic race discrimination that actually pervades our world. As Professor Orin Kerr banally notes, the Blewett court’s analysis is contrary to what “the controlling law requires” and, at times, “doesn’t even track the form of legal argument.” Perhaps, then, it’s time for the form of legal argument and controlling law to change.