Category: 98:4

The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely acknowledged and sometimes even denied.

This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While Civil Rights era decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized “distancing” the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. By rereading opinions concerning school desegregation, voting rights, affirmative action, and disparate impact in terms of reckoning and distancing, this Article provides key insights into racial equality law’s history as well as a glimpse into its likely future under the Roberts Court.

Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis highlights how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, nonrepetition, and reconciliation) has inhibited America’s transition from white supremacy. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase.

As protestors demand a reckoning with America’s legacies of racism, the Roberts Court appears poised to leave the past behind. A distancing jurisprudence limits not just what the Court sees as constitutionally required, but what it sees as constitutionally permissible in the pursuit of transition. This Article considers how advocates can seek to reorient race jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.

Each year in the United States, millions of women’s pregnancies end not with the birth of a living child, but in miscarriage or with the birth of a dead, stillborn child. Marginalized women face a higher risk of these undesired endings. Compared to white women, Black women are twice as likely to suffer a late miscarriage and to give birth to a stillborn child. Compared to wealthier women, women of lower socioeconomic status face a heightened risk of miscarriage and are twice as likely to give birth to a stillborn child.

Miscarriage and especially stillbirth are significant life experiences for women. Yet, they receive little attention within women’s rights movements. For years, the reproductive rights movement has avoided the topics of miscarriage and stillbirth due to their supposed conflict with fetal personhood. Motivated to highlight the experiences of marginalized women, women of color introduced the more holistic reproductive justice movement. Despite its broader lens, however, reproductive justice still does not highlight women’s experiences of miscarriage and stillbirth.

This Article seeks to cure these omissions and to define women’s reproductive justice-based rights concerning miscarriage and stillbirth. She has a right to prenatal care aimed at preventing miscarriage and stillbirth. She has a birth justice right to give birth to her stillborn child as she desires and to be fully informed of her treatment options for miscarriage, including the costs of those options. She has a right to culturally appropriate mental and emotional health treatment after miscarriage or stillbirth. Last, she has a right to parent her stillborn child, a motherhood entitled to legal recognition in the form of tax benefits, birth certificates, tort claims, and entitlement to autopsies.

Conservative scholars and a Supreme Court majority support reviving the nondelegation doctrine as a way to downsize the administrative state. But proposals from these scholars and Justices inevitably maintain there should be an exception for national security.

This Article explains why a national security exception defeats the nondelegation doctrine’s goals of preserving the separation of powers and individual liberty. In doing so, this Article charts the ways the national security state regulates and accounts for its immunity from the harshest attacks on the administrative state. This Article also predicts how this dynamic would affect a nondelegation revival.

This Article begins by offering a new model depicting agency lawmaking in national security. It draws on insights from military-industrial complex theory, which has received scant attention from legal scholars. What I call the military-administrative complex uses threat-inflation to obtain increased regulatory authority over individuals, including American civilians. As its reach expands, the boundary between domestic and national security regulation fades.

Next, this Article describes why presidential control theory—which grounds the legitimacy of delegation in the President’s political accountability and oversight—cannot justify a national security exception. The military-administrative complex is so entrenched and insulated that even the President must delegate vast discretion to agencies within it.

Finally, this Article scrutinizes the sources the Justices themselves cite to support their nondelegation arguments. If the Court adopted the reasoning in these sources, this Article predicts, a revived nondelegation doctrine with a national security exception would be inherently unstable. Ever-expanding definitions of “national security” could allow the exception to swallow the rule.

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers. The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing. By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color. In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.