Abstract

Excerpted From: Raquel Muñiz, A Theory of Racialized Judicial Decision-making, 28 Michigan Journal of Race and Law 345 (Fall, 2023) (570 Footnotes) (Full Document)

Consider the following instances: justices reasoning that segregation laws are racially discriminatory only in Black people's minds. Judges framing people of color as seeking outrageous, unmerited legal remedies, before denying them a legal remedy. Litigants of color claiming the president made racist comments against them, but the Court reframing the comments as non-racist and at most merely critical. A judge tearing up while discussing the humanity of a white defendant, followed by a relatively light sentence. Judges framing Black defendants as less deserving of lighter sentences before deviating from sentencing guidelines, giving them substantially longer sentences than similarly positioned white defendants. Judicial language framing men of color as dangerous and more prone to violence.

Each of these instances involves what I call racialized judicial decisionmaking--a process in which judges connect racialized schematic thinking into durable, systemic structures that resolve disputes before them and reproduce and institutionalize the social racial hierarchy. Through the process, judges attach racial meaning to seemingly neutral processes. In racialized judicial decision-making, judges assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. The process occurs within and across different areas of law, creating systemic, institutionalized, and lasting racial structures, given the institutional power the law occupies in society.

Scholars of race and the law have long argued that courts contribute to the reproduction of the racial hierarchy. The outcomes of court rulings are racialized, showing differential outcomes across ethnoracial groups. This Article builds on and furthers this legacy of scholarship on race and the law by introducing a theory explaining how the judicial decision-making process as a system itself is racialized, beyond individual biases and ideologies that explain particular legal doctrines in specific areas of law. That is, I focus on how the construct of race shapes the judicial decision-making process as a system, building off of theories that have offered evidence of the racialized outcomes of judicial opinions. By taking a step back to theorize how judicial decision-making as a systemic process is constitutive of race and ultimately reproduces the social racial hierarchy, I draw the focus to how we can create change toward racial equity through the decisionmaking process itself.

I begin my argument in Section II. Because my focus remains on the process of judicial decision-making as a system, in this Section, I explore prior judicial decision-making theories. Theories advancing an understanding of judicial decision-making have offered lenses grounded in behaviorist theories (e.g., rational decision-making) and attitudinal models(e.g., biases and experiences), a body of work to which both social scientists and legal scholars have contributed. Yet, in these theories examining judicial decision-making, the role of race and racialization is largely absent.

I then turn to the literature of scholars of race and the law. They have laid the conceptual foundation showing the courts' role in maintaining the pernicious racial hierarchy. Identifying the need for a body of work critiquing the role of the law in reproducing racial inequality, these scholars introduced conceptual tools that interrogated the majoritarian narrative governing the legal field; namely, that the law is a neutral and insular institution. They furthered understandings regarding the institutionalization and reproduction of the racial hierarchy via the courts. I aim to expand this rich body of work by offering a nuanced account of how the judicial decision-making process itself, across doctrines and issues, is constitutive of race, a phenomenon that cuts within and across areas of law.

In the next Section (III), I integrate further conceptual groundwork that undergirds my proposed framework. Drawing on the work of sociologists of race and ethnicity, I introduce schematic thinking as a phenomenon integral to the ubiquity of pernicious social racial hierarchies. Cognitive schemas are “taken-for-granted” mental maps or rulebooks individuals use to assess, simplify, and make decisions in situations, which often involve complex issues and multiple stakeholders. Race qua mental maps encodes the racial hierarchies. The hierarchies are contextually activated and become durable structures when connected to material resources and power within their social contexts. In the aggregate, these individual actions connecting racialized cognitive schemas to resources and power create system-level reproduction of the racial hierarchy. Schematic thinking is important in understanding the racialization of judicial decision-making as an aggregate phenomenon leading to the institutionalized systemic reproduction of the racial hierarchy.

Building on this conceptual ground and integrating the analysis of micro-level action (i.e., judicial decision-making) to understand macrolevel phenomenon (i.e., a racialized legal system), I introduce the framework of racialized judicial decision-making. I argue that judicial decisionmaking is a racialized process in which racialized cognitive schemas bound the decision-making process. Judges transpose these bounded racial schemas into their decisions (e.g., judicial opinions) by assigning legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. This behavior is systemic--individual-level action that leads to a macro-level pattern of racialization that has evolved over time across the court systems and remains two decades into the twenty-first century. After offering this proposition, I introduce three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, (2) color-evasive approaches as effective tools to justify racially disparate outcomes, and (3) the elevation of racial discrimination into a status of exceptionalism that justifies heightened standards in racial anti-discrimination claims. I conclude this Section with a discussion regarding the institutionalization of the racial hierarchy via the judicial decision-making process, given the legitimacy courts wield in society.

Next, I turn to a discussion and the implications of my theory in Section IV. By reframing judicial decision-making as being constitutive of race (i.e., racialized), the framework raises questions regarding the role of judges in collectively reproducing the racial hierarchy via their decisionmaking process. I argue that one important source of power judges hold in judicial decision-making is agency, even within disciplinary constraints, and this agency can be used to disrupt hegemonic, durable, racialized structures. Agency has allowed judges, for instance, to shape legal doctrine in ways that constrict the pathways to advance racial equity, making it difficult for litigants who are predominantly of color to prove racial discrimination. Similarly, to follow precedent without interrogating it allows the reproduction of prior racialized structures. This is the case even when done inadvertently, because the system is racialized; to recreate its patterns requires only implementation and reproduction of prior patterns. Agency thus is key in reshaping judicial decision-making in ways that disrupt the racial hierarchy. I conclude the Article with thoughts on the invaluable role judicial decision-making can play in furthering racial justice in a democratic society.

[. . .]

Racial equity in a democratic society that deems itself largely progressive is imperative, especially when there has been a growth in racial inequity across multiple sectors of society. Social institutions, such as the courts, have a role to play in working towards furthering racial equity. By reframing judicial decision-making as a racialized system, it becomes evident that by claiming to stay silent or neutral, the courts uphold certain social norms that are not neutral--they benefit particular communities, groups, and individuals. Reframing judicial decision-making as racialized draws attention to the importance of intentionality in judicial decisionmaking and to the agency that judges hold in making decisions. Leveraging this agency, judges can orient their decision-making towards a more just democratic society.

Assistant Professor, Lynch School of Education and Human Development and Law School (courtesy) at Boston College.