This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination but embraces affirmative action for diversity purposes. Yet, as ongoing litigation demonstrates, the countermovements to antiracism that oppose affirmative action seek to dismantle race conscious state action altogether, and given recent personnel changes on the Court, this more "palatable" justification for affirmative action, having escaped judicial invalidation in Grutter v Bolinger, faces judicial invalidation once again.
Part I highlights the Court's opposition to racial remedies and its acceptance of diversity in affirmative action litigation. Part I also discusses developments in judicial remedies law as an additional basis for demonstrating the Court's hostility to racial redress and its alignment with mainstream political forces. Part II discusses the response of contemporary antiracist actors to judicial conservatives-particularly the proposals by several Critical Race Theorists that seek to de-emphasize race as a vehicle for navigating the political and legal landscape that opposes race-based remedies. Part III offers direction for future antiracist advocacy in a conservative political opportunity structure.
Darren Lenard Hutchinson, Majority Politics and Race Based Remedies, 50 How. L.J. 827 (2007), available at http://scholarship.law.ufl.edu/facultypub/379