A Theory of Racialized Judicial Decision-Making

In this Article, I introduce a theory of racialized judicial decision-making as a framework to explain how judicial decision-making as a system contributes to creating and maintaining the racial hierarchy in the United States. Judicial decision-making, I argue, is itself a racialized systemic process in which judges transpose racially-bounded cognitive schemas as they make decisions. In the process, they assign legal burdens differentially across ethnoracial groups, to the disproportionate detriment of ethnoracial minorities. After presenting this argument, I turn to three mechanisms at play in racialized judicial decision-making: (1) whiteness as capital that increases epistemic advantages in the judicial process, (2) color-evasive approaches as effective tools to justify racially disparate outcomes, and (3) the elevation of racial discrimination into a status of exceptionalism that justifies heightened standards in proving racial anti-discrimination claims.

I argue that the racialized judicial decision-making process reproducing the social racial hierarchy is institutionalized via the legitimacy courts wield. I conclude with a discussion on the agency and autonomy inherent in the judicial decision-making process, emphasizing judicial decision-making is not simply a reflection of ideology—personal or otherwise—individual biases, or cultural tides, and can as a system be leveraged to further racial equity in a democratic society.