Color-Blind: Procedure's Quiet but Crucial Role in Achieving Racial Justice

Abstract

This article explores the often overlooked role of procedure in producing impartiality in judicial proceedings. The article addresses a number of procedures, including those in the Constitution, that have allowed courts to deal with racially charged cases without undue influence from local pressure. The article compares federal courts and state courts – most of whom lack the protections against salary reduction that federal judges enjoy – and shows the start contrast in the Desegregation era between federal judges who enforced the Equal Protection Clause, and the many state judges who refused to follow U. S. Supreme Court and federal appellate rulings. The article also explores less well known procedural differences, such as those involving selection of juries and remedial tools available to federal courts but not to state courts.

The article, however, spends a good deal of time digging beneath the issue of how local pressures can impede impartial justice, especially in racially charged cases, to the roots of the trouble. The Framers developed constitutional protections to help federal judges enjoy independence – e.g., protection for life during good behavior, and against salary reductions – because they knew that human bias was a fact of life. Similarly, any procedures seeks to account for the human bias that interferes with impartial justice. No system will achieve that perfectly. Nor does this article maintain that the federal or any other system achieved such perfect impartiality, even in Desegregation matters. The article simply points to the role of procedures, behind the scenes, in assisting with the effort to provide impartial justice.

Keywords: Judicial System, Constitution, Procedure, Desegregation, Equal Protection

JEL Classification: K1''8 K4''8 K41