“History,” Max Beerbohm said, “does not repeat itself. The historians repeat one another.”
This quote may (or may not) be an entirely accurate reflection of stare decisis, the notion that stability in the law relies on courts faithfully following past precedent. But the quote makes room for the recognition that stare decisis carries racist precedent from centuries past to perpetuate modern systemic racial subordination in modern immigration law. Ahilan Arulanantham’s Reversing Racist Precedent, forthcoming in the Georgetown Law Journal, proposes a systemic disinfectant for this problem: applying constitutional limitations on race-based state action to racist judicial precedent.
Reams of scholarship have excoriated the nineteenth century cases establishing that Congress and the executive branch are largely freed from constitutional fetters when making immigration law and policy. Every immigration law student learns that the extraordinary power that the political branches wield over immigration law is grounded in extraconstitutional sovereignty, bulwarked by considerations of foreign policy and national security. The Supreme Court articulated this power in the 19th century Chinese Exclusion Cases, Chae Chan Ping and Fong Yue Ting.
Reading these cases, students are often struck by the baldness of its anti-Chinese rhetoric. The Court’s considerations of foreign policy and national security arose from its characterization of Chinese American communities within the United States as “vast hordes of Chinese people” whose “crowding in upon us” was a “form [of] aggression and encroachment.” The Court affirmed Congress’s conclusion that “the presence of foreigners of a different race in this country, who will not assimilate with us,” was “dangerous to [the] peace and security” of the United States. This apparent refusal of a racial group to assimilate constituted a national threat despite the absence of “actual hostilities with the nation of which the foreigners are subjects.” The Court’s characterization of these communities as dangerous cells of insidiousness anchored its reasoning that Congress is entirely unfettered when legislating the why or how of exclusion and deportation.
The Chinese Exclusion cases illustrate the obvious: America’s judiciary did not escape our history of open racism. Dusty tomes harboring openly racist opinions fill the shelves of law school libraries. Stare decisis recycles these precedents, Arulanantham points out, handing them across the decades into neutrally-framed modern precedent that continues to rely on them. Merely dropping the open racism of these precedents, he argues, is not sufficient to disinfect modern case law from older precedent that grounded its reasoning explicitly on race. Since that era, modern constitutional law requires scrutiny of state action grounded on intentional racial discrimination.
Arulanantham proposes turning the same constitutional lens on the third branch. He argues that courts must apply the prohibition against state action motivated by racial animus to its own decisions, stripping those infected with racial prejudice of precedential force. This approach, he claims, will go far to address legal rules infected with racial discrimination.
Arulanantham’s approach is both straightforward and innovative. It proposes using constitutional precedent (stare decisis) to scrutinize the doctrine of stare decisis. Beginning as far back as 1873, the Supreme Court has struck down facially neutral rules motivated by discriminatory purpose. Under the modern constitutional formulation, if invidious race discrimination played a role in even facially neutral government action, that action is unlawful unless the government can show it would have made the same decision without discriminatory intent.
How would this work in practice? Arulunantham explains that “when one party relies on a precedent infected by racism, the other should be able to challenge reliance on that precedent as inconsistent with the Constitution’s prohibition against discrimination. Success would result in the court disregarding the precedent.” (P. 444.)
This is not just an innovation in advocacy strategy, nor merely a way to prevent modern court cases from relying on outdated notions of racial inferiority. Arulanantham also holds out the possibility of disrupting structural racism itself. “In a common law system built on stare decisis,” he explains, “rules enacted with invidious racist intent may naturally persist for decades or more, even where the lawyers and judges following them today harbor no present racist intent.” (P. 444.) Without this brake on stare decisis, racially-based rules will continue to influence American jurisprudence. “In other words,” he points out, “absent an exception for racist precedents, stare decisis doctrine itself functions as a structure that perpetuates racism.” (P. 444.)
Arulanantham concludes that judges should not be exempt from constitutional prohibitions against discrimination, noting that other judicial acts such as jury selection and some court orders already receive such scrutiny. Perhaps most famously, Shelley v. Kraemer relied on the notion that judicial decisions constituted state action when they upheld private agreements in the form of racially restrictive covenants.
The article deftly addresses two major objections to the thesis. The first is purely practical. Given how widespread racially discriminatory views were throughout American history, does that mean that every opinion written by a judge with racist views must be discarded? That’s a lot of dusty tomes.
The answer is no. Racist judges, he recognizes, may still produce good legal rules, such as the ancient writ of habeas corpus. “If a judge who happens to harbor racist views issues a decision, but there is no evidence that racism played a role in that decision,” Arulanantham explains, “the fact that the author held racist views” would not doom the precedent. (Pp. 470-471.)
This is consistent with established approaches to assessing discrimination. Discriminatory views are not actionable unless they come to ground and influence the actor’s conduct, though those views can still constitute evidence of a judge’s invidious intent. And the assessment of discrimination would focus not on the whole opinion but on the relevant legal proposition. Thus, a neutral standard of review may survive while a substantive holding driven by racial animus in the same opinion would fall. Even the much-maligned Korematsu case, he observes, produced the modern strict scrutiny rule for assessing racial classifications.
Just as daunting is the towering body of “second-generation cases”—more modern cases that rely on the older explicitly racist cases. This may be the proposal’s greatest obstacle, but it also holds its greatest promise. Arulanantham first recommends an established test in antidiscrimination law, allowing the later case to stand “so long as it provides race-neutral reasons for the rule endorsed in the prior case,” and “the later case would have adopted the rule even as a matter of first impression.” (P. 476.) A more stringent measure would require the second-generation case to also “acknowledge that the prior case was motivated by racial animus and explicitly choose to readopt the rule from the prior case, notwithstanding its racist origins.” (P. 476.) This second approach would preclude use of the modern case unless it had actually confronted the racism in the original decision and adopted the rule for neutral reasons. The acknowledgement ensures disinfection of the case from the racism of the original case.
Arulanantham does not choose between these approaches. His point is that either approach would begin the critical project of disinfecting racist precedent from the law.
I leave it to you to explore how the author applies these ideas to the Chinese Exclusion Cases in immigration law, connecting those earliest cases to modern Supreme Court precedent that supported the Muslim ban, immigration detention, and immigrant admissions. What I liked (lots) about the article was the clean simplicity of its proposition that judges focus the constitutional lens on their own judicial products. And I loved the way the article turns a mirror on stare decisis itself, applying stare decisis to stare decisis, and pushing us to recognize its structural role in structural racism.
