The Rhetoric of Racism in the United States Supreme Court

This Article is the first study that categorizes and analyzes all the references to the terms “racist,” “racism,” and “white supremacy” throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court’s rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme Court’s usage, the law and the Court are largely innocent in perpetuating racism. The other striking pattern is the significant modern uptick in the use of “racism” and “white supremacy” to deny or minimize the harms of racism or engage in blame-shifting tactics. This Article demonstrates how the Court’s definitions of “racism” and “white supremacy” undercut the law’s potential to achieve racial justice and have removed the Court as a player in the fight against racism. To rectify this rhetorical (and doctrinal) problem, the Justices on the Court must name racism boldly and directly, especially when the Court and its decisions bear responsibility for it.