Affirmative Action, Hate Speech, and Tenure by Baez Benjamin;

Author:Baez, Benjamin;
Language: eng
Format: epub
Publisher: Taylor & Francis Group
Published: 2002-08-15T00:00:00+00:00

The Affirmative Action Stories

The cases discussed in this chapter reveal the predominance of seven “stories” used repeatedly by the judges to justify their decisions for or against affirmative action. The use of stories is not problematic, since judges must interpret laws but have no actual control over the apparatuses that must enforce those interpretations (their decisions also are subject to appeal). Judges, therefore, must convince others that their opinions are correct (or at least legitimate). But legal stories also, following James Boyd White, constitute community, and when these stories justify decisions against racial minorities, they constitute a racially oppressive community and preserve it through repressive means. These stories, therefore, underscore the judiciary’s ability to commit violence through speech.

Judges persuade in ways similar to those of other political actors. Deborah Stone argues that political actors often use “causal stories,” with images of “cause, blame, and responsibility,” to gain support for their side.17 In other words, these individuals compose stories that describe harms and difficulties, attribute them to the actions of other individuals or organizations, and, thereby, claim the right to invoke government power to stop the harm. Furthermore, political actors manipulate symbolic devices, all the while making it seem as if they are simply describing facts. The stories discussed in this chapter are causal stories.

Alan Freeman notes that the Supreme Court stories in particular are presented to the public as “melodramatic media distillations.” The Court, he says,

is basically a storytelling institution. Its cases serve as instructive moral parables, presented to most people as stark, melodramatic media distillations. The Court’s stories must engage dialectically with other dominant political institutions, with preexisting cultural assumption, and other sources of cultural authority (e.g., movies). In the long run, the Court offers a vision of America that normalizes the existing patterns of inequality and hierarchy.18

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