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The case of Judge Ketanji Brown Jackson and why we should all be proponents of critical race theory


Zukiswa Pikoli is a journalist and columnist at Daily Maverick and is part of the founding team of Maverick Citizen. Prior to Daily Maverick she worked as a communications and advocacy officer at Public Interest Law Centre SECTION27.

Had the US Supreme Court nominee admitted to being a proponent of critical race theory, what would be wrong with that, given America’s civil rights history and current events relating to tense race relations?

Judge Ketanji Brown Jackson’s confirmation was marred by very racialised overtones designed to show her as unfit for the job by the Republican Party senators questioning her.

The senators’ line of questioning ranged from deadpan and almost dismissive, like Tom Cotton was when asking about sentencing, to some being almost hysterical in their questioning, such as Lindsey Graham, who stormed off after he had asked his questions.

Brown Jackson maintained her composure, though, and was unflappable in her responses, displaying the qualities of a judge poised to assume a position in the United States of America’s highest court.

The most glaring point was the deliberate portrayal of critical race theory as destructive and divisive to society and taken to mean that she would unfairly preside over cases using the ideology espoused by the theory. In an attempt to prove this point, senator Ted Cruz even trotted out a selection of children’s books which he said advocate for white people to be sent back to Europe and that colour blindness is convenient for those not wanting to address the issue of racism. Cruz also tried to make the case that the theory is against the principles espoused by Martin Luther King in his “I have a dream” speech, in which he said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the [colour] of their skin but by the content of their character.”

Responding, Brown Jackson told Cruz: “It doesn’t come up in my work as a judge… It’s never something that I studied or relied on, and it wouldn’t be something I would rely on if I was on the Supreme Court.”

Renowned civil rights activist and professor of law Kimberlé Crenshaw, who is perhaps best known for coining the term “intersectionality”, which says that people experience discrimination differently depending on their overlapping identities such as race, gender, class, etc, is one of the leading scholars of critical race theory.

The theory makes the case in the US context that racism does not cease to exist because of changes in legislation, but that it is structurally ingrained and contributes to the large wealth gap between those in the majority and minorities, as well as the underrepresentation of minorities even in what are considered to be “colour-blind” spaces. Crenshaw describes this as the “stubborn endurance of the structures of white dominance”.

Now, looking at the composition of the Republicans it then starts to become clear why Republicans would be in opposition to the theory because the party represents majority white, male and wealthy interests. Even the composition of the Supreme Court, which has taken 200 years for it to have a black woman on the Bench, has not been representative or demonstrated a commitment to reforming structural inequality in America. This leads one to conclude that Brown Jackson may be viewed as a threat to the established status quo.

Brown Jackson was at pains, however, to prove that she is worth her salt as a judge of the Supreme Court, explaining that she knows that as a judge personal feelings have to be put aside while adjudicating matters and sentencing: “We do so within the bounds of a sentencing range that Congress prescribes… as a judge you’re asked within the context of a single prosecution regarding a particular person who has committed a horrible crime but also, says Congress, is a person who has a life, a job, all of the other factors that Congress has told judges that they have to look at when they decide what penalty to impose.”

But let’s assume for a second that Judge Brown Jackson had admitted to being a proponent of critical race theory. What would be wrong with that, particularly taking into account America’s civil rights history and current events relating to tense race relations? We are all products of our environment and do not live in a world without context, and in a democracy the law is meant to be just and equitable. This means that while all are equal according to the law, the material conditions under which people live still need to be taken into consideration.  

It cannot be lost on even the Republicans the significance of having the first black woman to serve in the Supreme Court in its two-century history. While we accept that the majority in the US is made up of white people, it bears examining why it has taken this long to have a worthy black woman candidate put forward for the position. And critical race theory can be used as a tool to interrogate this.

In fact, it is my position that we should all be proponents of critical race theory because it will help us dismantle the structural oppression that black people continue to face. The fact that it threatens those who preside over these structures is exactly what needs to be exposed by getting them to explain why they should continue to benefit from ill-gotten gains. DM168

Zukiswa Pikoli is a journalist at Maverick Citizen.

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.


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  • Miles Japhet says:

    CRT is unhelpful in every way, as it casts black people as victims.
    This attitude holds back their potential to compete in a tough world.
    Those who succeed, do so because they are self confident and back themselves.

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