Academic journal article Washington Law Review

Perfectionism and Maximum Consciousness in Anti-Discrimination Law: A Tribute to Judge Betty B. Fletcher

Academic journal article Washington Law Review

Perfectionism and Maximum Consciousness in Anti-Discrimination Law: A Tribute to Judge Betty B. Fletcher

Article excerpt

Abstract: What follows is a speech on the significance of Judge Betty Binns Fletcher's opinions in the area of race and anti-discrimination law delivered at the University of Washington School of Law's symposium, A Tribute to the Honorable Betty Binns Fletcher, honoring Judge Fletcher's thirtieth year on the bench. I argue that, in an era when the Supreme Court has increasingly refused to recognize anti-discrimination claims, Judge Fletcher's intensely fact-sensitive method of deciding such cases is as important as the results she has reached. Against the Supreme Court's perfectionist jurisprudence, predicated on the assumption that by excising race from law, one can eliminate discrimination in society, Judge Fletcher has developed a jurisprudence of maximum consciousness, predicated on the assumption that judicial officers are obliged by the Fourteenth Amendment and our history to remain acutely aware of the risk of slippage between seemingly rational, neutral social action and irrational stereotype, cognitive bias, and animus.

I am honored to have the invitation to speak about Judge Betty Fletcher. I should say up front that I am not an empiricist. My method of reflecting on the Judge's decisions on race and the law is the fruit of an impressionistic doctrinal survey, supplemented by something like reverse autobiographical free association. I am not an anti-discrimination expert either, though I have followed some of the doctrine in this area with interest. It is also possible and perhaps more honest to say that antidiscrimination law brought me to law school, though not in any conventional sense. I have not told this story to the Judge before, but I am prompted by reading her cases on race to share it now.

My parents are mixed. My mother is lily white, grew up in a small New England town. My father is black, grew up on the South Side of Chicago. Spauldings, black Spauldings, have always been mixed. Family records go back to North Carolina in the early 1 800s and a series of interracial encounters: between a white plantation owner and his slave, the Indian woman the slave married, and the son of the plantation owner who freed the slave by formal court petition in 1825. The slave, Benjamin Spaulding, was born in Duplin County in 1773. Deed records show him owning property as early as 1817, and the 1820 census lists him as a "free man of color," so the later court petition merely may have recognized a prior understanding between master and slave.1 Benjamin Spaulding and his wife Edith had ten children, and those children eventually married Indians, whites, and other blacks.2

So, a complicated history of miscegenation was in place long before my parents met in college and decided to marry. Still their choice was not easy. They married within a year of the Supreme Court decision in Loving v. Virginia.3 My mother's family initially disowned her, and it took years before many of them could even so much as meet my father's eye. My parents told me about Loving, and I remember feeling dumbstruck by the idea that a law of any kind might have prevented my parents' marriage if they had lived in the wrong state. Even though the decision struck down anti-miscegenation laws, the thought of it - of such laws and of the need for judicial intervention in something so intimate, so idiosyncratic, so private - provoked a kind of vertiginous feeling I can now identify as bordering on the existential. The proximity between law and my being, my parents' well-being, was revealed in a way that made my identity seem more fragile and contingent than I think any child's should.

IfI had not already, at that moment, resolved to be a lawyer, to master the thing that seemed then so opaque and powerful, meeting my father's friend, a black lawyer from Los Angeles who in the 1970s was working entertainment deals with black musicians, sealed the deal. I have long since lost the pre-release Stevie Wonder LP of Hotter Than July he gave me for my ninth birthday, but the idea that law could offer access both to the Constitution and racial equality on the one hand, and to Stevie Wonder on the other, was too much to resist. …

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