Courts can declare racial disparities a normal feature rather than evidence of racism

Evidence

Setting himself apart from the “weak” Dukakis on crime, the “tough” Bush endorsed capital punishment and its rampant disparities. In 1987, the Supreme Court ruled in McCleskey v. Kemp that the “racially disproportionate impact” of Georgia’s death penalty—Blacks were being sentenced to death four times more frequently than Whites—did not justify overturning the death sentence for a Black man named Warren McCleskey unless a “racially discriminatory purpose” could be demonstrated. If the Court had chosen to rule in McCleskey’s favor, it would have opened the future to antiracist cases and to renovations of the criminal justice system, which was rotting in racism. But instead the justices disconnected racial disparities from racism, deemed racial disparities a normal part of the criminal justice system, and blamed these disparities on Black criminals, yet again producing racist ideas to defend racist policies. — Ibram X. Kendi, Stamped from the Beginning, 1104

Categorization

• DEFINE: Crystal example of Kendi’s core inversion: the McCleskey Court produced racist ideas (disparities-not-racism) to defend a racist policy. Also a precise ruling to place in the segregationist/assimilationist/antiracist scheme.
• XREF: Directly answers the reader’s stated test — whether ideas precede policy. Here policy reasoning produces ideas. Also connects to Milgrom-institution reading about how formal rules encode existing power. — connects to: Courts reject impact-based environmental racism claims absent proven intentional discrimination — Luke W. Cole and Sheila R. Foster, From the Ground Up: Environmental…, 327; Federal courts tolerated self-deceiving denials of de facto segregation. — Matthew D. Lassiter, The Suburban Origins of “Color-Blind”…, 44; A federal court declared Charlotte’s neighborhood-school system racially discriminatory. — Matthew D. Lassiter, The Suburban Origins of “Color-Blind”…, 29 (+1 more)
• SEED: Angle: ‘disproportionate impact’ doctrine as legal machinery for erasing racism from measurement — how burden-of-proof rules themselves become racist-policy defenses.