“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
Thus said Justice John Marshall Harlan in his famous dissent in Plessy v. Ferguson, which legalized segregation. Harlan, the lone dissenter, stated the position that eventually won the day in Brown v. Board of Education decades later.
But in 2023, critical race theory (CRT) would agree more with the Plessy majority approach than with Justice Harlan. CRT holds that concepts like a neutral and unbiased system are impossible and that what’s really going on is a clash between two groups of people: the oppressors and the oppressed. According to CRT theorists like Ibram X. Kendi, the only way to remedy past discrimination is to actively discriminate in favor of minorities.
This woke approach to justice is nonsense.
Fortunately, Justice Jay Mitchell of the Alabama Supreme Court smacked down this approach to woke lawyering in a fantastic concurrence last week.
The case was Hudson v. Ivey. Lawyer Tiara Hudson was running to be a judicial candidate in Jefferson County when the Alabama Judicial Resources Allocation Commission voted to reallocate the vacant judgeship from Jefferson County to Madison County, finding that the latter had a great need, while Jefferson County had enough judges.
Warning: If you automatically thought the Commission transferred the position because of racism, you’ll likely be triggered by the rest of this article.
Hudson sought to undo the reallocation, bringing a legal challenge called a declaratory judgment action. Losing at trial court, she appealed to the Alabama Supreme Court. But in a 7-0 opinion, Chief Justice Parker and Justice Cook recusing themselves, the court held that the exclusive way to bring this kind of challenge for at least 80 years had been a writ of quo warranto. Since Hudson didn’t do that, they rejected her appeal.
In plain English, they didn’t reach the heart of her case. They just held 80 years of precedent dictated that she should have done it differently.
What compelled Hudson’s lawyers to miss such a fundamental point?
In a special concurrence, Justice Mitchell addressed the elephant in the room. To make up for her lack of a decent legal case, Hudson repeatedly hit on one fact: she’s black.
Is race relevant to a case like this? Maybe. But a party asserting that race is the problem must assert it the right way – like explicitly claiming that it was racial discrimination, providing the evidence to back it up, and telling the court how it can fix the problem.
Hudson did none of these things, Mitchell pointed out. As he put it, “It appears that Hudson spends so much time focusing on race” to insinuate that relocating the judgeship “was motivated by bigotry rather than objective consideration of the factors” listed in the relocation law that she “stops short of actually arguing that point or presenting any evidence in support of it.”
In other words, you don’t get to show up in court and argue that you win because you’re a member of one race and the other parties are members of the other.
“Hudson’s implicit accusations of racism are particularly puzzling given that her own filings use overtly biased language when referring to different racial groups,” Mitchell continued, noting that she always capitalizes Black but never white. “The persistence of this pattern suggests that it is not an accident but instead a deliberate choice, the effect of which is to signal that certain races deserve heightened respect while others do not,” he said.
Finally, he called out Hudson’s firm by name. “Displays of racial bias would be shameful no matter the source, but they are especially troubling coming from a legal organization (the Southern Poverty Law Center) that purports to advance racial equality.” Mitchell contrasted the SPLC’s approach to racial equality with Harlan’s, reminding everyone that our legal system is indeed color-blind and not devoted to giving some groups special treatment over others.
I’m sure Mitchells’ rejection of woke lawyering caused much shrieking in Hell’s General Counsel’s Office. After all, CRT comes from Marxism, and Marxism comes from the pit of Hell. But while Screwtape and his colleagues lament that they couldn’t hijack the Alabama legal system, the people of Alabama rejoiced.
Now notice the title of this article. I said Justice Mitchell smacked down woke lawyering, not woke lawyers. The latter are free to bring their claims through the legal system and are entitled to full and fair consideration if they play by the same rules as the rest of us. The Alabama Supreme Court’s rejection of this appeal carries the implicit message that substituting identity politics for law won’t work. But if that wasn’t clear enough, then Mitchell is to be commended for saying the quiet part out loud.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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