The rule of law and the presumption of whiteness

‘I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.’ Judge S. Sotomayor

There was quite a buzz about this sentence from an old speech made by the newest member of the Supreme Court of the United States (SCOTUS), Sonia Sotomayor. Conservative commentators called her statements racist and labelled her a reverse racist for making the claim. In classic American fashion, these claims of reverse racism were repeated ad nauseum but they had no basis in fact. Indeed, the reactions of these conservative talking heads actually prove the point Judge Sotomayor was making – but we’ll return to that later.

Popular liberal commentator Bill Maher recently addressed this controversy with some guests on his show, Real Time with Bill Maher, including former US ambassador to the United Nations, John Bolton and Heather Wilson, who served in the US Air force and was a five term U.S. Representative from New Mexico. Maher quoted from an article written by CNN columnist Jeffrey Toobin, which reviewed decisions made by former SCOTUS Justice Roberts. The article stated that ‘in every case, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, the corporate defendant over the individual plaintiff.’ Maher continued, ‘In every case Roberts has had to decide, he has sided with the white male power structure.’

In response, Heather Wilson, quipped, ‘I would think that John Roberts would say that he applied the law to the particular case.’ Maher retorted, ‘Well it came out on the white side every darn time. That’s pretty amazing.’

Ms Wilson’s belief, that Justice Roberts was merely siding with the law when he agreed (every time) with that ‘white male power structure’, is based on a false assumption. You see, Ms Wilson’s comment and those of the conservative voices claiming that Sotomayor is a racist, assume that only white judges are capable of divorcing who they are and their personal backgrounds from their decisions and legal analysis.

That is one of the benefits of white privilege. White judges have the privilege of acting as though their race and rationale are the default setting from which every other race and rationale deviate. That they – by virtue of not being judges of colour – are the only ones who are capable of interpreting the law in a way that is devoid of bias.

The underlying (and unstated) premise of this belief is that the law canonises white privilege as the default setting and the standard by which our society operates. And since we as citizens are indoctrinated in a society that values whiteness above all else, we participate in fostering this phenomenon. Our default setting is one that sees the world through white values – unless programmed otherwise.

For example, if you are reading a book with a central male character, if the author does not mention the character’s race, the reader automatically assumes the character is white. I have found myself several pages into a story when the author casually mentions the male character’s ‘mocha brown skin’ or makes some other reference to the fact that the character is a person of colour. It can be a jarring experience. Not because the character is a person of colour – but rather because up until the point where the reader is informed that the character is a person of colour, that character received the benefits of the positive associations of whiteness – by default.

Let’s say the character is initially described simply as a male suspect who is being questioned for a crime. When the character’s race is not mentioned – he gets the presumption of innocence. Any perceived flaws in his character are usually resolved in a way that gives him the benefit of the doubt. In fact, race is not even an issue because we the readers are viewing the story in the default ‘white’ (i.e. race-less) setting.

Once it is revealed that the character is a black male, most readers take a momentary subconscious pause to reassess what they know about the character. He goes from being a likely innocent man, wrongly accused by the police and turns into a possible thug…in mere seconds. ‘Perhaps,’ the reader thinks, ‘the police in the story are right. Maybe this guy is a thug who needed to be taken off the streets.’

That, my friends, is an example of how the presumption of whiteness works. The presumption carries over into all aspects of life and the judiciary is no different. As a male character who has no race (i.e. a white character), the reader unknowingly affords the character every benefit of the doubt: 1) the cops got the wrong guy; 2) mistaken identity; 3) some other reason or excuse that makes us cheer for this character.

But as a character with ‘mocha brown skin’ – all of those benefits are replaced with suspicion and doubt. Instead of the presumption of innocence, we view this character more closely. He now has a hurdle to overcome if he is going to prove his innocence to the reader.

The presumption made by Heather Wilson on Bill Maher’s show, was that when Justice Roberts ruled 100 per cent of the time with that ‘white male power structure’, he was reaching his judicial decisions free of bias. That he was merely applying the law in a neutral fashion. The irony of the fact that an ‘unbiased’ application of the law always happened to come out in favour of the state – in favour of white ruling interests – was dismissed out of hand.

That is the benefit of the presumption of whiteness. That as a white judge, when you use the law to rule in favour of white interests, every time, your rulings are an unbiased application of the law. Judges of colour who are confronted with making a decision that might in some way give some benefit to people of colour – or God forbid – make a decision that impinges on white freedom in any way are never afforded the benefit of this presumption. They are usually criticised profusely for making a decision based on ‘race’ or ‘personal’ politics.

Based on the history of this country, Judge Sotomayor’s comments were correct. A wise judge of colour could make, on average, better decisions than an old white judge who had not been through those experiences. Why is that? Simply put, it is because white male judges have been using the law to make decisions in the interests of white people since the judiciary was installed. These decisions tend to extend benefits to non-white people only to the extent that those benefits do not impinge on the benefits afforded to whites.

SLAVERY

Let’s start with the obvious example. Slavery and the Black Codes. In case after case, white judges ruled on an entire host of issues, pertaining to enslaved Africans. With rare exception, these rulings were made against the enslaved Africans and in favour of what was deemed white society’s best interests. The judicial opinion which best sums up this trend is the infamous Dred Scott case (Scott v. Sanford, 60 U.S. 393 (1856)) where Supreme Court Chief Justice Taney informed the world that the black community was so inferior when compared to the white community that ‘they had no rights which the white man was bound to respect.’ This means that the only types of rulings that the black community could expect from the judicial system would be those that ruled against them and in favour of white interests.

Legal slavery ended in 1865. Which meant that the roughly four million former slaves who had been forced to work all their lives for nothing, were now legally in a position where they would have to be compensated for their labour. However, just because the social order could no longer be called slavery that did not mean that the power dynamic between whites and blacks had changed. Nor did it mean that the judicial system would stop being used to benefit the White community.

THE BLACK CODES

Slavery seamlessly evolved into the Black Codes and Convict Leasing system. The Black Codes were a ‘special’ set of laws designed just for black people. These codes essentially criminalised the acts of being black, poor, out of work or caught walking without one’s identification papers and a host of other ‘crimes’ that were then germane to newly freed blacks. If a black person broke these laws, they could be sentenced to jail time. Once sentenced to jail, black people could be forced to work for white land-owners (who used to be land and slave owners) who ‘leased’ or ‘rented’ them and their labour from the state. Which means that after slavery, a newly freed black person could be arrested for the crime of being black and jobless. At which point that person could be leased or rented by her former master and forced to work for free on the same plantation she used to work on as a slave.

The convict leasing system evolved into the modern day prison industrial complex. This evolved form of slavery was supported and re-enforced by judges. White judges who were making biased decisions that benefitted white people and the preferred social order.

The judiciary – as an institution – has a history of using its power to rule in favour of those interests deemed to be most important to the white community. Let’s be honest, a room full of diverse minds and opinions can make better decisions than a room full of people who all think alike or who all share the same interests (and a history replete with examples of using every power at their disposal to protect those interests). A wise Latina (or person of colour) who had lived a life that more likely than not was negatively impacted by those very same rulings should be able to reach better decisions (although this is not a hard and fast rule – hence Justice Sotomayor’s use of the subjunctive tense). Unfortunately, since the judiciary remains more than 90 per cent white, it may take us a while to build up a legal system and a body of law that actually reflects the benefits of that diversity.

What do you think? How can the benefits of diversity in thought and experience translate to practical application of the law?

BROUGHT TO YOU BY PAMBAZUKA NEWS

* This article was first published in The Race and Law Report.
* Lurie Daniel-Favors is director of Sankofa Community Empowerment.
* Please send comments to [email protected] or comment online at Pambazuka News.