Beyond Supreme Court Anti-Discrimination: An Essay on Racial Subordinations, Racial Pleasures and Commodified Race

Abstract

In recent years, the Supreme Court has narrowed its examination of racial subordinations to focus upon three doctrinal approaches: disparate treatment racial discrimination, the intent theory of racial discrimination, and suspect category strict scrutiny. Taken together, these three doctrines mutually reinforce racial discrimination as the only available legal understanding of racial subordination. Faced with the Court’s ever contracting list of issues available for discussion, some scholars have chosen to investigate outside the Court’s constricted understanding of race. This Essay begins by noting that racial subordinations—social subordinations premised on a schema of body types—are multiple and not limited to a single, narrow understanding. After introducing the Supreme Court’s restrictive approach in Section I, I examine in Section II recent scholarship on racial subordination that has pressed beyond the doctrinal confines created by the Supreme Court. I review authors discussing Title VII, common law contract, racial tropes, implicit bias, patent law, and trademark. Section III examines Professor Anthony Farley’s concept of racial pleasure—the idea that racial subordination gives pleasure to its participants. Racial pleasure is a form of racial subordination that falls outside of the Supreme Court’s understanding of racial subordination as racial discrimination. Through the examination of race in computer games, I suggest two distinctions. I observe a legal distinction between racial pleasures and commodified racial pleasures, and a normative legal distinction between permitted racial pleasures and illicit racial pleasures. Section III ends with a proposed standard for constitutional review of state regulation of illicit racial pleasures. As another interpretation of racial subordination, Section IV proposes a theorization of commodified race through Marx’ theory of commodity circulation.

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