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136 Harv. L. Rev. F. 37 (2022-2023)
Racism, Abolition, and Historical Resemblance

handle is hein.journals/forharoc136 and id is 37 raw text is: RACISM, ABOLITION, AND HISTORICAL RESEMBLANCE Dorothy E. Roberts* INTRODUCTION Professor Khiara Bridges's Foreword1 makes several stunning con- tributions to unlocking the mystifying logic behind the Roberts Court's jurisprudence on racial discrimination, which has consistently stymied, and even reversed, progress toward racial justice. First, Bridges identi- fies the test the Roberts Court uses to determine which racial injuries count as violations of the U.S. Constitution. To qualify as racial dis- crimination, harms experienced by people of color today must resemble those that white supremacists inflicted on people of color in the pre- Civil Rights Era. The challenged law or policy must bear some resem- blances to techniques of racial disenfranchisement that existed in the bad old days, Bridges explains.2 I will call this crucial constitutional standard the historical-resemblance test. The crux of Bridges's critique of the Court's racial jurisprudence is that it deploys the historical- resemblance test to deny remedies for racial injuries to nonwhite people when it finds their claims are not reminiscent enough of slavery and Jim Crow, while failing to require any historical resemblance at all to remedy white people's racial injuries. Instead, the Court has recognized new types of racial harms experienced by white people as constitu- tional violations simply because those harms feel like racism to the white claimants. By examining which claims the Court has recognized as racial inju- ries, Bridges reveals a second important and surprising aspect of the Court's discrimination jurisprudence. Bridges demonstrates that the Court is more likely to find constitutionally prohibited race discrimina- tion under the Second Amendment, Sixth Amendment, and the Due Process Clause than under the Equal Protection Clause. The payoff of Bridges's analysis is in directing our attention to the full scope of the Roberts Court's approach to racism, tying together multiple seemingly disconnected domains of constitutional law. Bridges points out further that the Court is not engaging in a value-neutral determination when it remedies only instances of racial discrimination that remind it of old-school racism.3 A theory lies beneath the Roberts Court's racial * George A. Weiss University Professor of Law & Sociology; Raymond Pace & Sadie Tanner Mossell Alexander Professor of Civil Rights; Professor of Africana Studies; Director, Penn Program on Race, Science & Society University of Pennsylvania. 1 Khiara M. Bridges, The Supreme Court, 2021 Term - Foreword: Race in the Roberts Court, 136 HARV. L. REV. 23 (2022). 2 Id. at 27. 3 Id. at 32. 37

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