Abstract
Excerpted From: Mae Kuykendall, “A Dangerous, Reverberating Silence”: Racial Silence, White Money, and Scotus?, 55 Seton Hall Law Review 847 (2025) (241 Footnotes) (Full Document)
Legal abstraction enables courts to address contentious issues by indirection. The most contentious issue for the Supreme Court, and even for state courts before 1789, has been, and is, race. In cases concerning race, the Court favored abstraction to avoid the messiness of facts describing the human stakes in a legal contest over constitutional meaning. In its love for abstraction concerning race, the Court meets its natural ally: silence. Silence abetted a jurisprudence of evasion, by which the Court tactically eroded the significance of race from the Constitution by misreading its formal, race-conscious provisions. Race is not, however, the issue under review in all cases that affect the Black minority. Race is a submerged but powerful companion to certain claims about money--specifically, claims that money is speech. The Court has over time gradually blocked regulation of campaign contributions by invoking the First Amendment right of free speech. When money talks, we rightly ask, who exactly has the megaphone, and to what end?
In the long history of the Supreme Court's treatment of race, through enslavement times, Reconstruction, Jim Crow, civil rights, and post-civil rights, the Court blended abstraction with silence in many cases about race. When race is overtly the subject of a case, abstraction and the attendant habit of silence allow the Court to address “race” without defining the term or considering the effects of a decision on the nation's then-present racial life. Recent “moves” in what I see as a recurring tendency on the Court rule race off the table, while conversely putting forward race as a battering ram in claims about White race harm resulting from Black persons gaining a presence in White spaces. The affirmative action ruling, which the symposium to which this paper is a contribution, is about the increased presence of Black students in Harvard and the University of North Carolina. The claimed harm is displacement of ““better” students yet the sign of harm is Black presence on formerly White spaces. Race does not exist, and the proof is the aggressive policing of Black success as potentially suspect. Race is only real when the Court says so, a moment of insight that arises from the fear of harm to the wealth and ego-security of the remaining race majority. Chief Justice Roberts created a catch-phrase meme for boundary policing when he referred to affirmative action in higher education as a “zero-sum” game, a phrase that is not real and yet deeply menacing in its encapsulation of White imagination. The zero-sum game occurs between raceless players and unruly contestants marked by race meanings embedded in the White imagination and culture.
As noted, silence cocooned in abstraction has obscured the significance of race in the Court's campaign finance jurisprudence, along with its increasingly friendly view of money payments to public officials. In recent years, White money--campaign finance contributions permitted by Citizens United v. Federal Election Commission been gushing into our political system. This Article will focus on how the Supreme Court has finessed formal rules passed to protect the Black minority and made certain of them a dead letter; how a White imagination marinated in money has skewed the Court's ideology; and how, in its most recent term, the Court has created a body of race-related precedent that will perpetuate our “dangerous, reverberating silence” as it narrows the path for aspiring descendants of those enslaved to join White- and money-dominated precincts.
I. Racial Silence and White Imagination
“As is the inevitable result of things unsaid,” observed James Baldwin, “we find ourselves until today oppressed with a dangerous and reverberating silence.” Though race and silence have independent significance, they also are parasitic, one on the other, in American law and culture. This Article foregrounds and reinforces the importance of race as one of the large silences throughout American legal history. Indeed, Grace Elizabeth Hale begins her book on the cultural signals that define Whiteness by contrast with a Black minority: “Central to the meaning of whiteness is a broad, collective American silence.”
There was silence from the very beginning. Though we were told as children George Washington could not tell a lie, we did not learn about his ability to engage in the deception of calculated silences if the subject at hand concerned slavery. As president of the new nation in 1790, Washington mastered the art of “calculated Executive reticence” with ease when he was confronted with two Quakers petitions, one calling for the gradual abolition of slavery and the ending of the slave trade, the first signed by Benjamin Franklin. Though Washington was on record opposing slavery as a moral wrong, he refused to speak, instead relying on James Madison's “behind-the-maneuvering in the House,” which resulted in moving slavery off the agenda of national politics. Washington expressed relief, in a private letter to a confidante, that the subject “ha[d] at last been put to sleep.”
Washington's satisfaction with a national slumber about the subject of race has remained a marker for some part of America's White leadership, many of its White citizens, and even some of its Black citizens. Caught in bondage and within a silence of great men of the past, the enslaved people's hope for escape from bondage meant flight into an unknown place, always unsure of whom to trust, or where to hide, and fearful to breathe or to speak. Stories of silence abound in the pages of American history and in the present. They nest just below the surface of a shared past, named in passing and unrecognized, calling to a future that might give birth to listeners and re-interpreters and calling to empathetic senses of those not born but someday alert to sounds echoing in barely perceptible decibels.
Moreover, the early silence was supplemented by widespread claims of a slaveholders' paternalist ideology. This ideology created many myths--including one that plantation households had “gentle” mistresses who ministered to “loyal slaves”--while simultaneously sanctioning a belief in “human inequality” as a natural order ordained by God, tended by law, and sustained by power. “Inequality was sanctioned from the pulpit by ministers, from the bench by judges, and in the legislative chambers by elected officials.”
Little in the White imagination is immune to the distorting effects of silence. One distortion is explored by Thavolia Glymph, who shows how silence has contributed to the long-held narrative of female solidarity between mistress and enslaved household help. In Out of the House of Bondage: The Transformation of the Plantation Household, Glymph provides a specific and rich description of the silencing, erasure, and invisibility of the racial and gender dynamics of the slave household, dynamics sometimes imagined as female alliances between mistress and enslaved female household help. In my effort at classification, an index of silence for Glymph's book emerges: (1) enforced reverence as silence; (2) attributed silence (southern females as secret abolitionists) creating a meta silence; (3) stock figures of slaves creating silence about their lives and about mistresses' power; (4) false depiction of female slaves as allies of mistresses and imposing silence by speaking over the voices of slave women; (5) diversion as silence; (6) cultural attachment to what Frederick Douglass called “the seeming” and others call “the elegance of manners” as a dodge and as silence; (7) the treatment of outbursts of female violence against slaves as “barbaric” and exceptional, thus imposing cultural silence about evidence of White mistress character and conduct; (8) rationalization by White mistresses of violence towards slaves, thus imposing a silencing reinterpretation of merely brutal power; and so on.
In effect, the White imagination, which has been a primary source of expressive conventions about race, imposes a point of view on race history out of a complicated fabric of delusions, illusions, wishful thinking, greed, and a lost history of everyday experience. In claiming the existence of something called the White imagination, I do not make a claim to an invariant set of understandings or explicit rules for perception. A complex and interesting treatment of the connection between Whiteness and the visual arts-- the American Visual--provides a view of how Whiteness has pervaded the creation and reception of visual meaning in art and even in architecture. The author of the book Sight Unseen: Whiteness and American Visual Culture, Martin Berger, takes care to avoid an indictment of the White mind and person, preferring instead to detect and describe evidence of how art confirms rather than creates racial “meanings for which the discourses and structures of our society have predisposed us.” The complexity of the ideas deserve to be fully appreciated by a close reading of the book, which contains chapters exploring specific visual images understood in the culture of a given moment. Chapter headings offer examples: “Genre Painting and the Foundations of Modern Race”; “Landscape Photography and the White Gaze”; “Museum Architecture and the Imperialism of Whiteness”; “Silent Cinema and the Gradations of Whiteness”; and “The Triumph of Racialized Thought.”
In evaluating the investigation of visual art in connection with Whiteness studies, John Ott's review of Sight Unseen subjects the author's focus on Whiteness as an organizing principle of symbolic power--with a “deliberate exclusion of other ranked social categories” a critique of Berger's overly broad positioning of Whiteness as an explanatory approach to art and culture. For my purposes, however, where race is the specific concern in the larger cultural treatment of race in law and in politics, the emphasis on the presence of race where it is invisible provides a useful insight for claims that silence serves the White imagination even where race appears to be the topic but is evaded. Berger's evaluation of the “unseen” in visual culture is larger in scope than that of what I argue is the unseen in the political, legal, cultural, and judicial avoidance of analysis of race in opinions that involve the very question of race. Yet Berger's insights carry weight for the consideration of race where it is plainly lurking in action or legal discourse and is undeniably both present and avoided. One area where race is both unavoidably present in both a visual culture as well as official action is concerted racial planning to create housing segregation and even the confinement of Black populations to inner city ghettos from which commuting to suburban jobs is prohibitive. In this instance, legal action and occluded discourse perform the visual effect that embeds and creates the White-centered geographic image described in Sight Unseen.
Consider the narratives that always overcome the voices of enslaved persons by rendering them as stock figures in a pretty story and pair them with claims that household violence by southern women was the exception to kindness. Correcting such narratives calls for a revised playbook infused with Glymph's corrected script. Kindness surely existed, but a core of cruelty is the story the White imagination would wish away. Indeed, a claim of human kindness toward enslaved persons substitutes wishful thinking about human character for the human reality that arises in power differentials. The figure of kind slaveholding women is not an empirically valid recovery of human behavior but instead a substitution of a stock figure of a kind White owner for an owner who would surely have fallen prey to the human impulse to cruelty granted by the license of ownership.
The impulse to rescue the image of White women, though arguably an innocent wish to discover kindness and human connection in the enslavement story, nonetheless flatters White women as protectors of civil society in circumstances of race bondage from which they benefitted. Later historical scrutiny of White women of the South during the pre-Civil Rights era portrays their efforts to maintain White supremacy and to wrap it within a similar veneer of creating and protecting civil arrangements involving race. In the White imagination, women's work was long done to preserve a race hierarchy as natural and good, either in the retroactive and imagined rereading of the slave household or in the actual work of maintaining a racial hierarchy based on legal and cultural segregation.
The attachment of former slaveholding women to myths about beneficent purposes of slaveholding and the core racial hierarchy that rendered their ownership of other human beings godly is captured in a book that “upends a lot of older scholarship” claiming women were not involved in selling or abusing slaves. Describing the period after the end of the Civil War, Stephanie Jones-Rogers highlights the stark contrast between the search by formerly enslaved persons for loved ones sold by White women and the “preposterous narratives [of those White women] about slavery that omitted the trauma of separation, loss of self-determination, and violence.” Those self-justifying women clung to the claim that they had been fulfilling a moral obligation to civilize persons kidnapped from Africa for a practice that inured to those persons' benefit--a key claim depicting the slave trade as a benefit to those afforded the purported civilizing gift of White ownership.
Jones-Roberts captures the expression of noble sentiments to the unstated preference in White female nostalgia to conceal the connection to White wealth that sealed their support for slavery. White women “often distorted, obfuscated, and distanced themselves from the fourth reason they supported the system”: money. The White disposition to conceal and deny the pecuniary basis for a racist ideology can be found in any reading that sentimentalizes the slave period as a time of harmony and ignores the material gain of ownership of another human being. Even today, the claim that the capture and enslavement of Africans was a benefit to those enslaved and to their descendants is a lingering presence in arguments about continuing harm to the Black minority in the United States. Obfuscation and distortion have long half-lives, and silence plays a helping hand in Supreme Court jurisprudence. Notably, freed persons' long grief and suffering held no purchase in the White female memory. “When former slave owners wrote about slavery, their picture showed no brutality, no privation, no agony, no loss, no tears, no sweat, no blood.” The loss of human property commandeered the sensibilities of the former slave owners but left them insensible to the human ties of Black kinship.
[. . .]
My depiction of silence about race in the United States and at the Court does not purport to give an account of Black lives over those years of bias and unseeing. For me, Historian Nell Irvin Painter is a deeply intelligent source of perspective on Black life in the long American story. My personal conclusion will lean heavily on her writings in a recent retrospective of her work and her life, I Just Keep Talking: A Life in Essays.
Let me note I have only scratched the surface of the silences in legal doctrine, or in the general population. The list not covered here incudes the development of qualified immunity doctrine, which has the effect of suppressing narratives and thereby imposing a silence that buries knowledge, an act which is itself an injustice.
I have noted above that the ubiquitous category of race, when addressed by the Court with a cover of abstraction and silences, has no definition. A defining meaning does not exist in popular usage or in the Court. Professor Painter re-enforces that claim. In discussing her book, The History of White People, she reports that many of her readers persist in “thinking that race is somehow a permanent and biological fact rather than an ideology.” One result is that they “have had tremendous difficulty grasping the fact that definitions of White race have changed with time and place.” Nonetheless, the Supreme Court, while failing to offer a definition, predicates their current race jurisprudence on an assertion that race is toxic. At the Court, it is the undefined specter about which the Court has, effectively, nothing to say. Yet a Court capable of contribution to rational understandings of divisive cultural issues might contribute to public discourse something more than a claim that the subject is toxic and, implicitly, real and simultaneously off limits for public action except by the Court itself.
Professor Painter provides deep nuance about the Black experience in America, starting with her good fortune not shared by many other Black persons in the United States, in her lifetime or before. She explains that, given her fortunate childhood in a family with sufficient resources to translate their love into considerable support for her to thrive, she is by nature optimistic. She reports she has lived “a charmed life.” She also reports that her class privileges, even if “limited and contingent,” have made her able to realize that “disregard was not a correct appraisal of my worth” and to “know ... that in truth [she] was more than what other people saw--assumed as they quickly turned away--in [her].”
Yet her parents began their life, and hers as well, in a Jim Crow world. Professor Painter's mother gave birth to her in the Houston Hospital for Negro Women, a designation she describes as “named specifically to let everyone know it was meant to be lesser.” Her salvation was her parents' escape from Houston, Texas, to Berkeley, California, as well as their possession of college educations.
Despite her good fortune, Professor Painter is clear and blunt about the deep harms inflicted by “White” people on people with whom she shares the identity in the United States labeled over the years with evolving polite labels, or with slurs, and now generally called “Black.” Of her research, she explains that “around 1968-69 I emerged from my mid-twentieth century youth in the era of segregation into a new time of promised intellectual openness.” For herself and others, she notes that she is “a historian comfortable with the complexities, the challenges, even the contradictions within historical biography.” She describes her “personal sorrow for my country's ways with race [that] trace back less to slavery than to what came after in the decades of cruelty, extending into my own life.” When asked what she “does for healing,” she answers, “Nothing. I am not broken. Not broken, but on occasion frustrated, indignant--self-righteously--pissed off with cause, often exhausted.”
It is beyond the scope of this Conclusion to fully capture Professor Painter's account of race through her life in a nation still wedded to racism and sexism or to capture any person's life and reactions to their experience of race in the United States. Indeed, it is beyond the scope of any writer's hope to capture moments in time or their own or another person's experience of a world not of any one person's making. Our world is a place we live, somehow made by the collective actions, attitudes, and beliefs of those before us and those still with us. It is the task of all living people to seek to advance deeper knowledge and not to block what we know from becoming a common, deeply shared understanding. Let us not conceal what we know and let us try to know one another.
We can all try.
Professor of Law Emeritum, Michigan State University College of Law.
