Commentary

State Supreme Court Adopts Critical Race Theory to Undermine Due Process

Hans Bader | November 4, 2022 | 11:39am EDT
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Journalists often suggest that conservatives have no reason to object to critical race theory because it is just an abstract idea found in universities.  The Associated Press has called it an "obscure academic discussion point on the left" that conservatives have somehow turned into a "political rallying cry."

But critical race theory has spread far in society, to the point that a progressive state supreme court now uses it to set aside jury verdicts.

The Washington Supreme Court ruled on October 20 that lawyers for a white woman had presumptively engaged in a racist dog-whistle when they vigorously championed their client's case, by highlighting the fact that the other side's witnesses seemed to be colluding, and emphasizing the plaintiff's combative and confrontational behavior.

Under the court's ruling, vigorously exercising your due process rights can be deemed a racist dog-whistle that will lead to a new trial, when the opposing litigant is black, and objects to the outcome. This ruling effectively gives black plaintiffs a racial advantage in lawsuits against whites.

I have called opposing litigants and counsel confrontational and combative in the past, because in those cases, they were. Race had nothing to do with it — most of those combative people were white.

But in a strange ruling, the Washington State Supreme Court unanimously ruled that it was presumptively racist to characterize a plaintiff as “combative” or “confrontational,” because she happened to be black.

Based on this strange conclusion, it ruled that a $9,000 verdict in favor of a black female plaintiff was likely inadequate, and had to be overturned at the plaintiff’s request, unless the white woman who was sued could somehow prove the judgment would not have been larger absent its counsel calling the black plaintiff combative.

It also ruled by a 7-to-2 vote that it was presumptively racist to point out that three witnesses all used the exact same phrase, as if they were coached, suggesting collusion because the witnesses happened to be black.

(Getty Images)
(Getty Images)

Lawyer Ted Frank calls it an example of “a state Supreme Court applying critical race theory for the purpose of discriminating against whites in civil litigation” and how “pseudoscientific nonsense is infecting our institutions.”

The ruling does indeed rely on Critical Race Theory books, such as “Racial Microaggressions: Using Critical Race Theory to Respond to Everyday Racism,” and critical race theorists, such as a founder of Critical Race Theory, Derrick Bell.

The ruling also contains all sorts of bizarre, unnecessary claims unrelated to its holding, like suggesting that welfare fraud doesn’t exist (it routinely occurs) and that its existence is just a racist trope invented by Republicans.

The case involved a black woman asking for a new trial because of opposing counsel’s successful attack on her credibility and calling her “combative” in cross-examination. The black woman sued for $3.5 million after a white motorist had a rear-end collision with her. Video showed the black motorist was faking the extent of her injuries.

After defense counsel called into question her credibility, based on the video, the jury awarded the black woman only $9200.

In response to the request for a new trial, the trial judge did what trial courts would do in most of the country in this situation: it refused to do so. The Washington State Supreme Court reversed that ruling, saying that the burden was on the defendant — a white woman — to prove the judgment was not affected by racism. If the white woman can’t prove that, the plaintiff can have a new trial, and sue her all over again.

The black plaintiff had sued for a whopping $3.5 million after her car was hit from behind in a car accident. The jury awarded her $9,000, which the black plaintiff said was due to racism. But it is rare for juries to award $3.5 million for a traffic accident. $9,000 is a much more typical amount for a motorist to collect, especially when jurors suspect the plaintiff is exaggerating her injuries.

By allowing jury verdicts to be overturned based on speculative claims of racism, this ruling will result in more extortionate settlements. This ruling will bully some white litigants into not criticizing inappropriate behavior by black litigants and lawyers, and will bully litigants into not vigorously challenging questionable claims made by black litigants and lawyers. Thus, it undermines due process.

As Ted Frank observes, the ruling effectively gives black lawyers and witnesses an advantage. He says that if he were a Washington plaintiff’s “lawyer in state court, I’d be sure that my critical expert witness was Black. Free roll! Either I win, or [I argue that the opposing side’s] rebuttal of the expert was a microaggression of some sort and I get a new trial — or threaten one, to induce better settlement up front.”

The Washington Supreme Court’s ruling was issued on October 20 in a case known as Henderson v. Thompson. It reinforces an earlier ruling overturning a conviction because of a criminal’s race, in State v. SumIn that June 2022 ruling, state supreme court overturned a man’s conviction for lying to police, because he is non-white. If he were white, his conviction for making a false statement would have been upheld, because there was no dispute that he lied, and the questions he was asked by a police officer were typical attempts to gather information.

But the court ruled that the police officer’s questions to him effectively detained him, because his non-white race, in the court’s view, made the cop’s questions (such as what his name was) more coercive to him than if he were white. It ruled that the criminal was detained by these questions, regardless of whether he felt detained. The defendant in that case, Palla Sum, was not black, but rather an “Asian/Pacific Islander,” a racial group that is not arrested or incarcerated at a higher rate than white people.

By making it harder to question people of color about crimes, that Washington Supreme Court ruling made it harder to solve crimes in communities of color, such as predominantly-black areas. Murders are less likely to be solved in predominantly-black areas than predominantly white areas, fueling a much higher crime rate. And the victims of this high crime rate are disproportionately black, because most crime is committed against people of the perpetrator’s own race.

The Washington Supreme Court’s more recent decision, in Henderson v. Thompson, violates the equal protection clause of the Constitution by giving black litigants an unjustified advantage. The courts are bound by the equal protection clause, as the Supreme Court has made clear in many cases such as Strauder v. West Virginia (1880).

Race-based relief violates the equal protection clause, if there is not a “strong basis in evidence” that there is racial discrimination to remedy, as the Supreme Court has made clear in decisions such as Shaw v. Hunt (1996). In the Henderson case, there was only baseless speculation that the verdict was tainted by racism, and the actual motive of the Washington Supreme Court was likely to stack the deck in favor of black litigants, as a way of compensating for societal discrimination — something the U.S. Supreme Court’s Croson decision says is not a valid justification for using race.

If a government official has the wrong “purpose” for taking race-based action in favor of minorities, that taints the action, even if it would otherwise be constitutional, under the Supreme Court’s decision in Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996).

The desire for such unconstitutional compensatory discrimination is explicitly stated in works by Critical Race Theorists. The “key concept” in the book How to Be an Antiracist is that discrimination against whites is the only way to achieve equality: “The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination,” says that book, a New York Times bestseller.

That book is a “comprehensive introduction to critical race theory,” notes the leading progressive media organ Slate. Its author, Ibram Kendi, says he was “inspired by critical race theory,” and he has been described as a leading “critical race theorist.” Kendi said that he cannot “imagine a pathway to” his teachings “that does not engage CRT.”

However, even if the state supreme court’s decision violates the Constitution, that does not necessarily mean it will be corrected by the U.S. Supreme Court anytime soon. To obtain review from the U.S. Supreme Court, a litigant must file a petition for certiorari with the U.S. Supreme Court, and the Supreme Court must then grant the petition to hear the case. 

The U.S. Supreme Court turns down over 90% of all cert. petitions without comment. It does not hear appeals of even most erroneous lower court decisions.

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