Eyer, "Ideological Drift and the Forgotten History of Intent"

Katie Eyer (Rutgers Law School) has posted "Ideological Drift and the Forgotten History of Intent," which will appear in Volume 51 of the Harvard Civil Rights-Civil Liberties Law Review (2016). Here's the abstract:

It would no doubt surprise many readers of contemporary Equal Protection scholarship to hear intent doctrine described as one of the major racial justice victories of the Brown v. Board of Education era. Instead, under the account familiar to most contemporary readers, the institutionalization of intent was a conservative development, marking a turn away from racial justice concerns in the mid- to late 1970s.

Drawing on archival and other historical source materials, this Article contends that the former account in fact represents the true genesis of intent doctrine in Equal Protection jurisprudence. During the Plessy v. Ferguson era, restrictive doctrines barred racial justice advocates from challenging laws based on their invidious intent. Intent doctrine arose in the aftermath of Brown as a response by progressive actors to the ways that these Plessy era doctrines allowed rampant Southern evasion of Brown’s desegregation mandate.

Understanding this progressive history of intent doctrine has important implications. There are strong reasons to believe that these early progressive struggles to establish intent-based invalidation helped facilitate the 1970s-era conservative turn in intent doctrine that progressive scholars today decry. Thus, although the normative valence of intent doctrine shifted from progressive to conservative in the early to mid-1970s, progressive and moderate Justices on the Court were slow to realign their own doctrinal preferences. As a result, the Court’s progressive wing rarely resisted—and at times aided—the conservative doctrinal developments of the mid- to late 1970s.

The long history of intent therefore may help us to better understand the genesis of a phenomenon that scholars have long observed: the realignment of Equal Protection doctrine away from racial justice aims. And the long history of intent suggests that it is not only politics, but also doctrine, that plays a key role. Thus, while changes in popular sentiment serve as the backdrop to shifts in the Court’s normative orientation, it is the cooptation of progressive doctrine that renders such shifts familiar and unobjectionable to the Court.

The full article is available here.