Siegel, "Equality Divided"

Reva B. Siegel (Yale Law School) authored this year's Foreword to the Harvard Law Review's Supreme Court issue. The full text of her essay is now available online (Hat tip: Legal Theory Blog). Here's a taste:

Reva Siegel (credit)

Equal protection cases appeal to Brown v. Board of Education and the special harms that racial classifications inflict to justify this divided framework of review. These appeals to Brown function much like appeals to Martin Luther King; they imbue claims about civil rights with foundational authority. But the divided equal protection framework that today governs claims of discrimination was not “in” Brown or Loving v. Virginia. It was forged in decades of conflict over the civil rights project, as judges invoked precedents of the civil rights era, first, to justify new forms of judicial deference in reviewing minority claims of discrimination and, then, to justify new forms of judicial scrutiny in reviewing claims of discrimination brought by whites.

This Foreword demonstrates how a body of constitutional law that began in the aspiration to protect “discrete and insular minorities” has been profoundly transformed by the conflict that enforcing equal protection provokes. It shows that modern discriminatory purpose and strict scrutiny law emerged, not in the era of Brown, but decades later, in the desegregation and affirmative action debates of the late twentieth century, as the Court changed constitutional law in response to resistance the civil rights project aroused. As importantly, I show how these changes divided equal protection into two branches of doctrine: one branch of equal protection ignores citizens’ experience of law and the other is deeply concerned about it. . . . 

Read on here.