Vol. 8 No. 4 (April 1998) pp. 172-174.
JUST STORIES: HOW THE LAW EMBODIES RACISM AND BIAS by Thomas Ross. Boston: Beacon Press, 1996. 161 pp. Cloth $24.00. Paper $14.00. ISBN 0-8070-4401-6.
Reviewed by Conrad P. Rutkowski, Institute for Applied Phenomenology, Spring Valley, New York and Spruce Head Island, Maine. E-Mail: email@example.com.
The greater part of this book is based upon four previously published essays that appeared in four different law reviews between 1990 and 1993. They comprise chapters two through four. The first and fifth chapters were previously unpublished and serve as the introduction and conclusion to the work. All of the essays detail the author's odyssey in the "pathology" of American law.
Ross's work is a "Brandeis brief" written on behalf of racial minorities, women and the poor. In preparing his "brief," Ross is at once earnest, passionate and personal. While he does not see himself as "responsible" for the conditions in which minorities, women and the poor find themselves, he does term himself "complicit". He puts it this way: "I can never give back the advantages I enjoyed by growing up in the 1950s and 1960s in a society that stacked the educational, social, and employment deck in my favor by virtue of my race." But Ross does not stop here. He goes on to say:
And complicity doesn't stop with the inequalities of the past. As I cannot give back the advantages of my childhood or erase the disadvantages experienced by my black contemporaries, I also cannot avoid the continuing advantages I experience while living in a culture still gripped with prejudices that accord to me an assumption of worthiness that it denies to blacks, women, and others deemed different by the dominant class. This is the terrible and unwanted gift I receive every day of my life. And the fact that I receive it, wanted or not, keeps me in a state of complicity.
To say that Ross does not mirror the values of contemporary American society would be an understatement. He would not be a viable candidate for a judicial post in most sections of the country let alone the United States Supreme Court. What he says, however, and what he means at least merit our attention and concern if not our embrace. In our penchant for labeling here in the United States, Ross would be called a "liberal"-- a term of opprobrium bandied about particularly during election campaigns. Electoral rhetoric, however, does not compare and cannot compete with the grace and simple elegance of Ross' philosophically sound and morally rooted reasoning. He is a genuine scholar.
Most Americans would have a great deal of difficulty digesting let alone accepting what Ross has to say. Ross is acutely aware that his audience is not the "'innocent' white man" who decries claims of victimization by the many minorities, even though this person is his subject matter and target. He sees things differently. True equality does not exist in this country even though it is the most worthwhile of goals. Like Louis Lomax, he sees the position of every minority as analogous to that of the rear axle of an automobile. No matter how fast the wheels of that axle turn they never catch up to the front axle's wheels, which represent the white majority. Minorities have been intentionally positioned there. It is this very positioning that Ross challenges.
In the famous opening lines of his work THE COMMON LAW, Justice Oliver Wendell Holmes states:
The life of the law has not been logic; it has been experience. … The law embodies the STORY [emphasis added] of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Ross in all likelihood would agree with Holmes' definition of the law. He would, however, take serious issue with Holmes interpretation and application of the law in specific instances. This is where Ross' view of the law and what it should mean become clear.
In BUCK V. BELL (1927), for example, Justice Holmes wrote the majority opinion supporting the constitutionality of a Virginia statute that required the "sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility" with the famous (infamous?) conclusion that "Three generations of imbeciles are enough." Ross may have had this case and others like it in mind when he noted in his book that "law will always accommodate the separation and subjugation of those whom the powerful fear and despise." Ross is not so much attacking the reasoning in cases like BUCK V. BELL as its major premise that some of us are not as equal as others and therefore lack dignity and worth as human beings.
Ross looks at how judges INFORM the law. What rhetoric do they choose, what kind of STORIES do they tell, to rationalize rather than reason the basis of their decisions in many cases that come before them? In the instance of cases involving racial discrimination, Ross states: "Each judge, each case, each choice produce[s] a unique magic. Yet a pattern emerges: the theme of white innocence runs like a thread through the rhetorical tapestry of race." The cases he chooses to illustrate this point include DRED SCOTT, THE CIVIL RIGHTS CASES, and PLESSY V. FERGUSON. Ross would argue that such self-deception and self-deluding on the part of judges is not limited to simply matters involving race.
In a genuine sense Ross is an evangelist. Such an assertion is not intended to be pejorative in nature. His gospel is simple and clear: there is a "pervasive presence of racism, sexism, and class prejudice in our law." Redemption for all of us lies in our ridding not only law but our own value systems, which are based on what we are told and hold to be true, of these prejudices. This life "narrative" consists of the stories we listen to and tell each other about what we believe life is all about. It is the way in which we see each other, and as a result of these perceptions, make judgments and treat people accordingly. Much of what we believe as human beings rests upon faith, not of the religious nature, but rather the kind where we accept what we are told because of the nature of our relationship with those who are telling the stories. Ross seeks to have us reexamine what we do believe and the bases upon which our beliefs rest. Having done this in complete honesty with ourselves, Ross would then have us "seek a law that reflects our true and complete embrace of equality." He adds, "We ought to seek it even though it is surely beyond our reach."
Ross also speaks of the rhetoric of poverty. He says that we believe that "[p]oor people are different from the rest of us. Most of them are morally weak and undeserving. And in any event we are helpless to solve the complex and daunting problem of poverty." It is the veracity of this premise that Ross challenges. The resulting dichotomization of "us" and "them" collapses as a result of this. WE are THEM. He quotes from Michael Katz, who writes about the poor: "Some of us are lucky, not different."
Ross' work is replete with case after case in which the Supreme Court washes its hands when dealing with the rights and interests of poor people. He terms it a "non-interventionist approach." The Court has made a series of assumptions about the poor, which are not true. The poor are seen as different from us and they are characterized by moral weakness. Adding insult to injury the Court concludes that it is powerless to provide a remedy, deferring the issue to the supposed wisdom of the Congress. Ross insists that the rhetoric in these decisions needs to be examined for what it "reveals, obscures and invites."
Ross describes how feminist legal scholars have shown that "the rule of law has been the rule of men, a systematic domination and oppression of women." He cites the work of Katharine Bartlett in particular because she identifies the methods of feminist legal scholarship:
[T]hey seek to identify the ways in which legal rules, typically gender-neutral on their face, disadvantage and oppress women.
[T]hey engage in ... "feminist practical reasoning," a pragmatic mode of reasoning.
[They] tell stories of oppression as a "conscious-raising" activity.
What is Ross' judgment regarding the merit of this scholarship? "[It] will stand as a remarkable body of teachings, a rich set of stories, and an imaginative reconstitution of law.
What are we to make of Ross' work overall? Is he a martyr to a cause? He answers the latter question: "[E]ach of us must understand that some version of the martyr's commitment is always demanded of anyone who seeks to live a life of reflection and integrity. ... While our individual commitment may not be written in blood, we cannot pretend that this is a bloodless matter." Ross evidently does not mince his own words. His work is not just a book of stories, it is a book of truly JUST stories.
What are we to do about what Ross says? That is not a question in the present instance that the book reviewer should answer. Only you may choose to do so. Is his book worth reading; is it of value? It may be relevant to recall the words of Edmund Burke, the British Statesman: "The only thing necessary for the triumph of evil is for good men to do nothing."
Holmes, Jr., Oliver Wendell, 1909, 1923, THE COMMON LAW. Boston: Little, Brown and Company.
Smith, J. David and K. Ray Campbell, 1989, The Sterilization of Carrie Buck: Was She Feebleminded or Society's Pawn. Far Hills, New Jersey: New Horizon Press.
Copyright 1998 by the author