Rex Kerr
2 min readJul 13, 2023

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Whatever you look like and whoever you are--assuming you can read or listen, assuming you can imagine--you can learn a great deal about the experience of black people in the United States. If you have failed to avail yourself of this opportunity, blaming your skin color, hair color, or eye color to excuse your disinterest or negligence is not only dishonest but also bigoted against anyone else who might have made different choices in their life despite having the same superficial traits as you do.

It is important to retain a sense of humility about what you can and can't learn from observing someone else walk a mile in their own shoes (or reading surveys about people walking a mile in shoes-like-that) as opposed walking in their shoes yourself, but your statement above goes way beyond humility into a outright rejection of the most important capacity humans have as a social species: our ability to understand each other's experience.

Furthermore, although you are correct that Justice Jackson's argumentation leans on CRT principles at times (mostly not, however!), this weakens, not strengthens her position in this regard because in the words of Delgado and Stefancic (Critical Race Theory: An Introduction, 3rd ed. 2017), it "challenges the neutral principles of Constitutional law".

Unfortunately for Jackson, the Supreme Court is where you are supposed to uphold the neutral principles of Constitutional law, not challenge them, because your ultimate source of authority is...the...Constitution.

The majority opinion is crystal clear on this: "[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." [quoting Miller 515; see p. 32 of https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf]

Jackson's rebuttal is at its strongest where it eschews every and all manner of CRT and instead embraces the most stringent classical principles of evidence. For instance, footnote 94 on p. 20 of her rebuttal (document page 228) is a devastating critique of the majority perspective, if true, because it shows explicitly that in at least some cases race could not possibly have been used as a crude "plus" sans individual awareness as the majority opinion charges (in UNC's case; Harvard is out of luck).

So I urge you to understand your fellow humans more deeply, even if they're not exactly like you; you cannot properly empathize with them otherwise.

And I urge your readers, should they peruse the dissent, to also read Derrick Bell's early work when it was tied to legal realism, and ask if anything Justice Jackson did that bears less resemblance to that and more to the tenets of Critical Race Theory are the kind of thing that the Supreme Court should be deciding rather than the legislature.

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Rex Kerr
Rex Kerr

Written by Rex Kerr

One who rejoices when everything is made as simple as possible, but no simpler. Sayer of things that may be wrong, but not so bad that they're not even wrong.

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