One Law of Race

I. IntroductionWhen interpreting constitutional and statutory race equality law, the Supreme Court has oscillated between two contradictory interpretive strategies. Sometimes the Court has pursued a strategy of divergence, enforcing differences in constitutional and statutory law expressed by the text of particular provisions or revealed by consulting the purposes for which those provisions were proposed or enacted. At other times, the Court has pursued a strategy of convergence, aligning the substance and scope of legal protections derived from constitutional and statutory sources notwithstanding their apparent differences. The Court has never declared one strategy superior to the other, nor has it examined its own practices to diagnose the competing considerations used to justify its choice of strategy. This Article offers such a diagnosis by identifying the primary rationales on which the Court has relied to justify one choice of strategy over another.Convergence holds considerable intuitive appeal, particularly when predicated on the empirical assumption that the nature of race discrimination is consistent across the wide range of social circumstances in which the law seeks to promote equality. This Article argues, however, that the temptation to organize race equality law around a single set of assumptions prejudices judicial interpretation and threatens to strip political institutions of the ability to develop and to implement a diversity of legal approaches to the problem of racial inequality.The argument may seem superfluous. Some prominent cases in the Court's race equality jurisprudence suggest that divergence is the norm. Not the least of these is Washington v. Davis, in which the Court famously concluded that disparate-impact doctrine is not a feature of the Constitution's equality guarantee,1 2 3 4 even though it had previously recognized the doctrine under Title VII of the Civil Rights Act of 1964.2 Davis reflects a view of constitutional governance in which Congress may enact laws requiring a "more probing judicial review of" potentially discriminatory behavior than what the Constitution requires, provided that it does so pursuant to a legitimate grant of legislative authority.3 Although the decision's substance and rationale have been understandably controversial,4 the Davis Court justified divergence by invoking its institutional duty to honor differences in the substance and scope of constitutional and statutory law. In the area of race equality law more generally, divergence conveys the additional benefit of preserving for Congress and the states discretion to experiment with different approaches to promoting equality. Moreover, if the Court is generally mistrustful of legislative standards that diverge from constitutional norms, it will have difficulty discharging its duty to faithfully interpret statutory law.Divergence, however, can be counterintuitive. Constitutional and statutory laws at times subscribe to a common agenda to defeat race discrimination in parallel, or even identical, circumstances; and, in situations where both constitutional and statutory standards apply, divergence may be "most troubling."5 It contradicts basic expectations that like cases ought to be treated alike and that laws regulating the same conduct ought to be guided by a common, objective understanding of that conduct. In race equality law, this would mean a common understanding of the nature of race discrimination and its relationship to inequality. Finally, as a matter of moral intuition, it may appear that the prohibition against race discrimination ought to be absolute, and that a society that genuinely condemns such discrimination ought to make no allowances for any distinctions based on race.* * 5 6 7 The Supreme Court's current colorblindness approach to equal protection frequently appears guided by this intuition.7Perhaps not surprisingly then, the Court has increasingly favored convergence. …