Family Law and Racial Preferences

I wanted to flag a terrific new article by Katie Eyer that will be coming out soon in the University of Pennsylvania Law Review.  Here is the Abstract:


Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including most notably affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents.

This paper, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last 40 years — had numerous opportunities to address the growing divide. Nevertheless the Court (and particularly its most strident affirmative action detractors) have been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided taking up cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a normative perception that remaining instantiations of race in family law are, at their core, benign.

This history has profound implications for the Court’s broader race law jurisprudence. Supreme Court doctrine has — on its face — rejected the possibility of a role for normative judgments about the “benign” or “invidious” nature of particular race-based classifications in its Equal Protection doctrine. But the history of the Court’s approach to family law suggests strongly that the Court itself does in fact weigh such factors sub rosa in its approach to taking up and adjudicating race law claims. This article suggests that there are serious process, legitimacy and substantive concerns raised by such a divergence, and discusses alternatives for bringing the Court’s doctrine into greater alignment with its practice.

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4 Responses

  1. Orin Kerr says:

    How do cert denials constitute a body of law that can be compared to merits decisions?

  2. Refill says:


    I think the idea is to use a vomit-inducing amount of jargon (“a normative perception that remaining instantiations of race in family law are, at their core, benign”) to conceal the fact that the article says and relies on nothing of value.

  3. Gerard Magliocca says:

    Well, it’s not my article, but if one has access to the papers of the Justices and can establish that some had a practice of denying certiorari in cases because they are in tension with certain precedents, I think that is useful information.

  4. Katie Eyer says:

    Just came across this and just wanted to briefly respond in case anyone is still following this thread. First, Gerard, thanks for posting a link to the piece!

    And Orin, in response to your query — the claim in the article is not that denials of certiorari are somehow doctrinally significant in such a way that they can or should override merits decisions. Rather, the claim is that to the extent we have historical evidence suggesting that the Justices may not truly ascribe to their own articulated rule (and have used denials of certiorari as a vehicle for doing so), that is something that has scholarly (and potentially practical) significance. (For example, when coupled with the opinions of some of the Court’s race conservatives/moderates in cases like Johnson v. California and PICS, I think it suggests there may be a real practical possibility that a majority of the Justices may be motivated in certain contexts to retreat from the broad categorical colorblindness approach they have endorsed in the affirmative action cases — something of both scholarly and practical significance).

    I’m working right now on a thought piece offering a broader defense of why we should have more scholarly consideration of denials of certiorari review — I think that in view of the increasing tools that we as scholars have at our disposal to understand how they may be being used by the Justices (papers of the Justices available in a shorter time frame, comprehensive databases from which it is fairly easy to ascertain patterns in denials of review), these are an increasingly valuable source of insight from a scholarly perspective. In short, I still think there are good reasons for the doctrinal rule (that cert denials aren’t treated as doctrinally significance), but I think we should differentiate that from the potential value of certiorari denials as an avenue of scholarly inquiry.