Justice Kennedy, Implicit Bias, Racial Anxiety and Dismantling the 14th Amendment’s Intent Standard

Last month, I had the distinct pleasure of talking to the Ninth Circuit Judicial Conference on implicit bias, racial anxiety and the 14th Amendment. The judicial conference, attended by 600 judges and lawyers working in the federal courts of the Ninth Circuit, meets to consider the business of the courts, to share ways to improve the administration of justice, and to provide educational opportunities for attendees.

Since EJS’s first conference at Stanford in October 2003, we have focused on how what is hidden from our conscious minds nonetheless influences our actions and decisions. I was excited and a bit nervous at the thought of presenting these concepts to both Ninth Circuit and District Court judges and worked on my remarks harder than any remarks since I spoke before Justice Thurgood Marshall, Justice William Brennan, and my parents.

Racism without Racists

On Wednesday, the day before the panel, there was a meeting of the panelists to make sure our presentations were coordinated. After the meeting, two of the lawyer representatives on the planning committee casually mentioned that Justice Kennedy was in the house! I completely freaked out because the last part of my remarks were on two items that might be seen as controversial but that I felt honor bound to say.

In order to prove that the Equal Protection Clause of the 14th Amendment has been violated, a plaintiff must show that the discriminatory action has been taken with racial animus or because of race, the so-called “intent standard.” My remarks on implicit bias demonstrated the existence of “racism without racists” in that implicit bias and associations often result in discriminatory decisions made by individuals who in their hearts and souls do not want to be biased. My conclusion based on social science and the animating vision of EJS is that the intent standard does not reflect modern day thinking about race and should be overturned and discarded as an artifact of the 20th century.

The United States Supreme Court has Turned Its Back on Black People

This was the part of my remarks that made me most nervous. How could I express the view that current Supreme Court jurisprudence seems to be more concerned with the rights of White people than those of Black folks and other people of color? I sat at the table where the meeting had taken place quite rattled and upset. My lawyer colleagues could not understand my fear and assured me that “Justice Kennedy is very nice.” That did not calm me and I burst into tears. I went back to my hotel room and reached out to friends from around the country for “moral, emotional, and intellectual support.”

“Justice Kennedy Would Like to Meet You, Eva”

Well, my friends and colleagues told me to speak the truth and speak from the heart which I did. I could tell the judges and attorneys in the audience were being enlightened about the fact that social science demonstrates that most White people associate Black people with criminality and aggression. I shared the painful result that Professor Jennifer Eberhardt from Stanford reported namely that when many White people see my face they associate it with that of an ape. I shared an insight that a friend of mine told me when she said that Clarence Thomas is the source of the Court’s insights on Black people. I said respectfully that there are many other views of Blackness abroad in the land. I told the audience that Black folks went to federal court in the 1950’s and 60’s for justice but that we feel that the Court has turned its back on us. I felt supported by my friends and by my ancestors but was quite nervous because I could see Justice Kennedy sitting in the last row of the large ballroom.

I sat down relieved that I was through and was surprised to receive a standing ovation. I covered my head in disbelief. After a question and answer period, my ordeal was over and I was standing up talking with friends from the audience, when the judge who had organized the panel said, “Justice Kennedy wants to meet you.” I was quite shocked. There he was. He asked me if one of the interventions I had mentioned aimed at minimizing implicit bias could be a jury instruction. Ever the joker, I replied, “Well you are on the Supreme Court.”

It was all a bit too much but also quite wonderful. For 14 years, we here at EJS have wanted to get our ideas about race and the 14th Amendment before the proper court. We have been involved in litigation; filed amicus briefs; trained judges, teachers, doctors; and others about how racism manifests itself in the 21st century in an attempt to “reclaim the 14th Amendment” as my friend Ted Shaw puts it.

The remarks at the Ninth Circuit Judicial Conference were the culmination of the work of the many able people who have worked at EJS, who have supported EJS, and who have developed relationships with EJS.

Getting validation of our vision was so exciting.



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