Cedric Merlin Powell (Louis D. Brandeis School of Law at the University of Louisville) has posted Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory on SSRN. Here is the abstract:
My article is a forward-looking, historical piece that offers a critique of colorblind constitutionalism through an examination of the Court’s race jurisprudence. Justice O’Connor’s affirmative action decisions serve as a model for a critique of neutrality and inversion – the doctrinal technique of turning substantive concepts inside out in the name of neutrality only to preserve systemic oppression – the Court has dramatically reinterpreted the Fourteenth Amendment. Justice O’Connor’s decisions serve as a pivotal point for this radical re-interpretation. What is striking about this shift is that Justice Thomas has become a leading race theorist on the Court – he turns history inside out so that a militant historical figure like Frederick Douglass becomes a proponent for colorblind constitutionalism. This article critiques this doctrinal development through an in depth analysis of the themes underlying Justice O’Connor’s race jurisprudence and Justice Thomas’s rhetorical use of historical revisionism. This article will serve as a conceptual link between the race jurisprudence of the Rehnquist Court and the emerging conservative race jurisprudence of the Roberts Court.