The Racism of Judge Amy Coney Barrett

You don’t need to scour the legal opinions of Judge Barrett for racism, she walked white supremacy into the Senate chamber on the first day of her hearing.

The confirmation hearings of Judge Amy Coney Barrett have offered a fruitful opportunity to see how differently people experience the world and, at several turns, how insularly some people live. Her use of the term “sexual preference” has subtly reframed a civil rights movement as a choice-driven enterprise. Her rulings and her values are reliably conservative and this reliability is the secret to her success. She has been guided throughout her career, and now to the Supreme Court, by the invisible hand of the American right.

The question of whether Judge Barrett is racist is a hot topic. But she has Black kids! Enquiring minds want to know: does her adoption of Black children signal anti-racism or is it just another aspect of her white supremacy?

In this regard, the internet was horrified to find Judge Barrett’s legal conclusion that the use of a racial slur — even the very worst racial slur employed against Black people — is not in itself proof of a hostile work environment. Yet, this is not what makes Judge Barrett racist. In reality, workplace use of the term, “n*gger,” is legally inadequate to support a finding of a hostile work environment for the Black people suffering this nonsense. This is merely the state of our employment discrimination law. It is a sign of the systemic racism all around, the product of decades of carefully limiting and overturning racial discrimination rulings to raise the bar to prove intentional discrimination beyond the point of clear, actual racism or misconduct. Judge Barrett’s determination that racial slurs are inadequate to show discrimination, without proof of its impact on termination, promotion, or workplace decision-making, merely reflects the legal precedent developed by the very same invisible hand that guided Judge Barrett’s career. Judge Barrett’s words, reiterated in caselaw nationally, reify the important concern of communities that the law remains out of step with the realities of systemic racism.

But no one need hurdle the paywall of legal databases to scour the legal opinions of Judge Barrett for racism. She walked white supremacy into the Senate chamber on the first day of her hearing. In her opening remarks, Judge Barrett introduced us to her family. The necessity and capacity to offer individualized comments for each child is certainly a sign of a loving parent who understands the need for children to be seen as individuals by their parents in large families. But how she introduced her children to us offered a powerful and painful look at white supremacy inside the home, and at the ways Black children become habituated to racism, normalizing systemic racism before they even consciously engage in social institutions.

In her remarks, Judge Barrett identified her white kids as smart, filled with potential, and explicitly with reference to their biological connection and inheritance. She tipped her hat to them as her intellectual and possibly even professional legacy. She identifies her adopted Black kids with reference to their needs, their bodies, their background, and their deficits. Her youngest child, who has Down’s Syndrome, is discussed in terms of his deficits only and labeled the family mascot: we love him anyway.

Judge Barrett’s chosen, prepared, scripted, careful language is the language of the white savior whose principal contribution to history is solidifying white supremacy at every turn. This is the language of lowered expectations, proven in the groundbreaking “stereotype threat” research of Claude Steele years ago to impact outcomes, including test scores, self-image, and intellectual performance. Inside her home, Judge Barrett is actively co-creating and stoking the racial disparities she laid out for us all in her opening statement at her confirmation hearing.

There are decades of authoritative research that this has a strong impact on Black kids, even at young ages. There are decades of activism and knowledge production by transracial adoptees of this very concern. These are fully absent and unacknowledged in Judge Barrett’s analysis. This, too, is white supremacy. The luxury and the recklessness to steal a child’s future on the basis of their race is a powerful form of racism, masked by good works, gratitude, and the children’s own compliance with the roles prescribed for them by their parents. While her white kids grow into their parents’ intellectual expectations, are her Black children expected to grow into manifestations of the deficit-oriented thinking that is structuring their childhood? Can a Black child interpret a deeply racist world when her parents’ first acknowledgement of racism is the killing of George Floyd using tactics her mother is likely to uphold as appropriate police conduct? As importantly, if interrogating her own racism and commitments to white supremacy are not important in service to children she presumably loves, how can the American people expect her to separate the racism she stokes from her efforts on our behalf?

In the United States, we can measure racial disparity virtually everywhere we look for it and yet few acknowledge racialized decision-making. Black children in America need survival skills to avoid understanding systemic racism as personal inadequacy. Judge Barrett, whose career was launched with a prestigious federal circuit court clerkship with a Supreme Court feeder who didn’t even require her to interview, knows something about this. The leg up that white mediocrity gets is rarely available to Black exceptionalism, if such a thing exists, or Black excellence. This is the design. Who will teach these kids to disregard, manage, and survive the presumptions they are less than, when those presumptions start at home?

There’s another important question at play here as well. Who will teach America to see the racism that bleeds from its very pores? Despite the robust literature and discourse on systemic racism, most of America seems unable to identify racism unless a knee is on someone’s neck. The conversation about the most racist moment of the Senate confirmation hearings seems to have been generated by and limited to Black social media. On the evening news last night, the commentator stated that nothing notable had happened in the hearings, although the most shocking moment of the day occurred before a single question was asked. The ways in which the racism before their eyes is converted to “white noise,” undetectable even in its flagrance, is another powerful and painful look at the persistence of white supremacy. This was on full display in Judge Barrett’s hearings, without any political grandstanding, trickery, or other foolishness. Yet the racism of Judge Amy Coney Barrett, which is also the racism of so much of America, escaped notice. Black incredulity, calling out her racism even despite the entirely predictable nature of her erasure of our capacity, also serves an important indicator of whose voices must define the leadership and the framings of anti-racism work if we ever want see progress on dismantling systemic racism and white supremacy.

Dominique Day is the Chair of the UN Working Group of Experts on People of African Descent and the founder/director of DAYLIGHT | Rule of Law • Access to Justice • Advocacy | www.daylyt.org.

Human rights attorney. DAYLIGHT (www.daylyt.org). Independent Expert, UN Working Group of Experts on People of African Descent. NYC by birth + by choice.

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