Detailed Study Notes on Randall Kennedy's Article on Race Relations Law

Author: Randall Kennedy
Published in Columbia Law Review, December 1986, Vol. 86, No. 8, pp. 1622-1661
Focus: Critiques the celebratory tradition in constitutional law scholarship, especially regarding the Supreme Court's role in promoting human freedom and its relationship to race relations.

Quote by Milan Kundera: "[T]he struggle of man against power is the struggle of memory against forgetting."

Main Argument: The celebratory tradition in constitutional law scholarship suggests that the Supreme Court has generally advanced freedom, despite pervasive racism during its history, particularly in how it has dealt with the rights of Black Americans.
Kennedy highlights a disconnect between this celebratory view and the very real suffering experienced by racial minorities.

The article critiques the idea that the Supreme Court deserves veneration.
Commentary often idolizes the Court, sometimes masking its failures regarding racial justice.
Critical examination of celebrated opinions reveals a pattern of complicity in racial oppression.

Praises and criticisms often arise from selective historicizing.
- Most notably, the early Court upheld laws maintaining slavery and later, Jim Crow laws.
- Kennedy highlights contradictions in celebratory claims made by legal scholars.
Notable scholars mentioned include:
- Charles Fairman, who acknowledges flaws in the Court but still aligns with its generally positive historical role.
- Henry Hart, who criticized the Warren Court yet implied overall approval of the Court’s historical role.

Pre-Civil War Era:
- Significant rulings such as Dred Scott v. Sandford (1857) reinforced the notion that Negroes could not be American citizens.
Post-Civil War Era to Civil Rights Movement:
- Plessy v. Ferguson (1896) upheld racial segregation under the separate but equal doctrine.
- Continued endorsement of laws further entrenching second-class citizenship for Black Americans until the middle of the 20th century.

While there were brief moments of judicial progressiveness (e.g., Brown v. Board of Education), these do not compensate for the larger legacy of the Court in perpetuating racial injustices.
Kennedy recounts the Court’s failures to protect minority rights, referencing various cases that upheld racist laws.

Celebrants often employ strategies that obscure the true implications of rulings against Black rights.
- Examples of such strategies include:
1. Downplaying the significance of racist decisions by framing them as practical or necessary under the politics of the time.
2. Celebrating decisions not for their positive impacts but for their mere existence amidst oppressive contexts.
3. Comparing the Court's record to the past or to less favorable judgments instead of assessing the direct impact on racial equality.

Schmidt’s work argues for a reassessment of the Supreme Court's race relations jurisprudence, particularly in the Progressive Era (1900-1920).
He identifies a shift in how courts treated racial advancements compared to previous administrations.
Despite acknowledging the oppressive context of Jim Crow, Schmidt emphasizes certain progressive decisions as signifying a departure from past failures.

Kennedy argues that Schmidt's analysis often overlooks dissenting traditions that reject racial hierarchy.
Thesis: This oversight leads to a form of scholarly apologetics, justifying past injustices in the name of progress.

Moral and Political Implications:
- The Supreme Court’s historical complicity in maintaining racial hierarchies requires urgent and unflinching critique.
- Acknowledgment of the struggles faced by Black Americans should inform current interpretations of legal history.