'Groups' and the Advent of Critical Race Scholarship

Abstract

This essay reconsiders Owen Fiss's Groups and the Equal Protection Clause, sometimes described as having instigated critical scholarship in the area of race. It argues that, from a contemporary vantagepoint, the article appears ambivalent in its critical thrust. Fiss's approach forsakes the jurisprudential comforts of neutrality, individualism and means/ends analysis for an explicit focus on the material and dignitary circumstances of African-Americans. Yet its account of racial disadvantage is surprisingly de-contextualized: it reflects neither the contemporaneous perspectives of its African-American subjects, nor more than a fleeting sense of the agonistic, political dynamics that produced it. This reified rendering yields an account of Black disadvantage that is decoupled from a corresponding account of white supremacy. The essay reflects on the sources of Fiss's critical ambivalence, and considers its implications for the Court's increasingly firm embrace of a single mediating principle.