If You Thought The Classrooms Were Bad, There’s a More Toxic Strain of Critical Race Theory Flowing From US Courtrooms

Judge Miranda Du

The specific statute in question is Section 1326 of the U.S. code. Section 1326 makes it a felony for previously-deported individuals to re-enter the United States. The default prison term for such an offense is up to two years in prison. Sentences can range as long as twenty years in prison, however, for offenders like Carrillo-Lopez who had previously been deported for illegal behavior.

Indeed, illegal reentry accounted for more than 20,000 cases in 2019 alone, making it one of the most common criminal charges brought in federal court.

The Section 1326 law therefore serves an important role, as it offered an easily-provable crime enabling the punishment and removal of foreign criminals — that is, until Judge Du declared that Section 1326 is racist.

Du opened her ruling by observing that Section 1326 has a so-called “disparate impact” on “Latinx” defendants.

Carrillo-Lopez argues, convincingly, that Section 1326 disparately impacts Mexican and Latinx defendants. While no publicly available data exists as to the national origin of those prosecuted under Section 1326, over 97% of persons apprehended at the border in 2000 were of Mexican decent, 86% in 2005, and 87% in 2010. [Court House News]

A rational-minded person might observe that the law’s “disparate impact” naturally results from the fact that Mexico borders the United States, and “Latinx” peoples make up a large majority of illegal migrants overall –and an overwhelming majority of those who illegally reenter the country after being deported. But Du has no patience for such a reasoned argument:

The government attributes that impact to other causes—geography and proportionality. Specifically, the government argues that the stated impact is “a product of geography, not discrimination” and the statistics are rather “a feature of Mexico’s proximity to the United States, the history of Mexican employment patterns, and other socio-political and economic factors that drive migration from Mexico to the United States–not discrimination.” … The Court is not persuaded. [Court House News]

And… that’s pretty much Du’s entire argument! She is simply “not persuaded.” According to Du, any racial disparity resulting from a law’s enforcement is sufficient to find the law discriminatory. Du goes on to suggest that the real reason that “Latinx” persons are prosecuted for illegal reentry more often than other groups is that the southern border suffers from “over-policing” relative to the northern one (and why might that be, Judge Du?).

After attributing “disparate impact” to Section 1326, Du then litigates its entire ninety-year legislative history. Ultimately she concludes that The Act of 1929 — the original immigration law out of which Section 1326 eventually emerged — was created with “racist intent.”

The Act of 1929 was passed during a time when nativism and eugenics were widely accepted, both in the country at large and by Congress, and … these racist theories ultimately fueled the Act’s passage. [Court House News]

Du then goes a step further, though, and argues that, even though later U.S. immigration laws contained the same provisions banning illegal reentry, such laws were not adequately “cleansed” of the 1929 act’s “racist origins.” As a 1952 reenactment of the illegal reentry law, Du says Section 1326 is “infected” with the virus of racism. Du’s evidence is as follows:

• Some supporters of stricter immigration laws used the word “wetback”
• There was a “relative lack of discussion” when reimplementing the law, which “suggests an acceptance of its history”
• The core wording of the law wasn’t changed.
• Congress overrode a veto from President Truman which complained the law was discriminatory

“The Court recognizes that this evidence is circumstantial,” Du nobly concedes, before proceeding to nullify one of the country’s most important criminal laws anyway.

Du’s argument regarding President Truman’s veto is in fact the most specious part of her case. President Truman’s veto of the bill did not call the deportation provision) of the immigration bill racist, and in fact did not highlight the deportation issue at all. Instead, Truman focused on a separate part of the bill concerning national origin quotas, and simply called for a general overhaul of U.S. immigration law. The only thing Truman said about the law concerning deportations is that it was “unnecessarily severe.” But Du bulldozed ahead anyway:

Although President Truman did not address Section 1326 specifically, the veto statement represents in no uncertain terms a contemporary admonishment of an overly punitive and discriminatory immigration policy. Truman expressly drew the INA into dialogue with prior immigration legislation, from both 1924 and 1929, which were concededly racist. But the 1952 Congress rejected that call and overrode the veto. The Court finds that Congress’ failure to heed President Truman’s call to “reimagine” immigration while simultaneously making the INA, and particularly Section 1326, more punitive in nature, is evidence of at least indifference to the nativist motivations of the statute’s predecessor. [Court House News]

Du is furious that a 70-year-old session of the U.S. Congress didn’t pass laws she wanted, and marshals this as her transcendent proof of legal “racism.” On this basis, Du declares Section 1326 to be null and void.

So who is this legal prodigy capable of consigning America’s second-most used federal criminal statue to the ash heap of history with a single magisterial wave of her CRT wand?

As it turns out, Du’s biography accentuates the treachery of her jurisprudence strikingly well. Du is a Vietnamese boat person, who left Communist Vietnam at age 9 with her father and settled in America at age 10. Du’s family was initially sponsored by a family in rural Alabama, and she later graduated from the University of California-Berkeley’s law school.

Du came from nothing. America handed her everything, and allowed her to take a lifetime job interpreting the meaning of the American Constitution.

And how has Du repaid the favor? By declaring the country’s laws racist down to their essence, and therefore illegal. But we shouldn’t be surprised. This is almost certainly the ideology Du was fed at the University of California, and it is the ideology she has been rewarded for espousing every step of her career. So much for the argument that immigrants can’t assimilate!

But the significance of Du’s ruling is far greater than the story of an ingrate Judge.

Judge Du’s ruling is not some run-of-the-mill “liberal judge” ruling, of the kind America has seen hundreds of over the decades. The ruling represents nothing less than the apotheosis of radical CRT in the American judicial system.

Critical Race Theory has become a household term in America. Most Americans associate it with the radical, explicitly anti-white doctrines that have been shoved into public school lessons and the corporate “diversity” seminars they are forced to attend or risk losing their jobs.

But before it was injected into the nation’s kindergarten classrooms, CRT was conceived in the nation’s law schools.

The earliest critical race theorists were all current or future law professors: Kimberlé Crenshaw (UCLA and Columbia), Mari Matsuda (UCLA and Hawaii), Derrick Bell (Harvard and Oregon), and so forth. Critical race theory is evil and toxic when put in the hands of a public school principal. It is far deadlier when given over to a willing federal judge, because CRT offers an ideological framework that justifies even the most extreme, anti-constitutional rulings in the name of our corrupt ruling class’ radical agenda.

Consider this introductory essay on CRT featured by the American Bar Association:

CRT is not a noun, but a verb. It cannot be confined to a static and narrow definition but is considered to be an evolving and malleable practice. It critiques how the social construction of race and institutionalized racism perpetuate a racial caste system that relegates people of color to the bottom tiers. CRT also recognizes that race intersects with other identities, including sexuality, gender identity, and others. CRT recognizes that racism is not a bygone relic of the past. Instead, it acknowledges that the legacy of slavery, segregation, and the imposition of second-class citizenship on Black Americans and other people of color continue to permeate the social fabric of this nation.

…

Tenets of CRT include:

• Acknowledgement that racism is a normal feature of society and is embedded within systems and institutions, like the legal system, that replicate racial inequality. This dismisses the idea that racist incidents are aberrations but instead are manifestations of structural and systemic racism.
• Rejection of popular understandings about racism, such as arguments that confine racism to a few “bad apples.” CRT recognizes that racism is codified in law, embedded in structures, and woven into public policy. CRT rejects claims of meritocracy or “colorblindness.” CRT recognizes that it is the systemic nature of racism that bears primary responsibility for reproducing racial inequality. [ABA]

The purpose of Critical Race Theory, as promulgated in the academy, is to find so-called “racism” in every aspect of American society

Judge Du’s ruling is therefore the quintessence of CRT.

We see this in Du’s assumption that the “disparate impact” of immigration enforcement on Latin Americans can only be rooted in racist and we see it in her belief that contemporary laws are irredeemably tainted by the racism of people who lived a century ago. Du’s intensely-motivated “reasoning” about what the law “should” be is a pure manifestation of CRT in action.

After Du handed down her ruling, UC-Davis law professor Eric Fish celebrated:

In a spring academic paper, Fish used almost the exact same arguments to attack Sec. 1326 that Du used, and he explicitly labeled his paper as employing “Critical Race Theory.”

What Judge Du has done is only a prelude of what is to come. As Prof. Fish’s paper (cited above) shows, this critical race ideology is a key component of the curricula  taught in the nation’s law schools. Du may be overturned on appeal by the Ninth Circuit or by the Supreme Court (if the Biden Administration bothers to appeal; former HUD Secretary Julian Castro says they should not). But there are almost certainly other judges on the bench prepared to reason the same way Du does — and over the next four years, President Biden will appoint more freaks to a federal bench that increasingly resembles a circus.

What are the potential ramifications here? As noted above, Judge Du cited “disparate impact” in her ruling declaring Sec. 1326 racist. The legal doctrine of “disparate impact” is perhaps the most pernicious and formidable tool in the arsenal of those who would advance CRT in the courts.

A recent Revolver article elaborated on just how insidious the “disparate impact” doctrine really is:

Disparate impact is the legal theory that a policy or practice is illegal under civil rights law even if no one is treated any differently based on their race (AKA, discrimination, or “disparate treatment”). That is, even if no one was racist was anyone else, a policy or practice could still perpetrate a racist outcome, even if it was completely neutral on its face, and neutral in its intention.

It might not be racist in and of itself to require shaving in the military. But if such a requirement disparately impacts certain protected classes (race, gender, religion) then the police is in effect racist and ought to be revised or abolished entirely.

With the disparate impact doctrine you could have “racism without racists.” And, suddenly, this invisible hand gave way to this invisible or “systemic” racism as the default assumption of how our economy, society, culture, and government really work.

Despite its fundamental impact on the functioning of our country, no one agreed to or voted on “disparate impact” when it became the law of the land. [Revolver]

The Revolver piece explored the culpability of “disparate impact” for relaxed grooming regulations in the US military, though it notes countless other instances in which the disparate impact doctrine has damaged the country:

As merit and law & order standards have collapsed across the country, most who oppose this development have been virtually clueless about the cause of their woes. They ask: Why can’t we have nice things?

Why can’t Oregon make reading or math a condition of graduating high school?
Why can’t San Francisco arrest people for shoplifting?
Why can’t high schools discipline disruptive student anymore?
Why can’t major universities use standardized testing anymore?
Why can’t people show an ID to prove who they are before they vote?

Every single time, the answer is the same thing. It’s disparate impact: the doctrine that destroyed America. [Revolver]

And now, thanks to Judge Du, we can add “open borders” to the list of blessings attributable to disparate impact theory.

The nature of disparate impact is such that any part of America’s past, and any one of its laws, can be deemed a cog in the machine of “systemic racism,” and any sort of intervention can be imagined to defeat it.

Consider this July New York Times opinion piece which argues, “There Is No Good Reason You Should Have to Be a Citizen to Vote.” For now, it’s just a ludicrous piece by a foreign-born journalist who already has three different passports. But it is entirely feasible to imagine a Miranda Du-like judge imposing this same argument by fiat. After all, laws that limit voting to citizens have a “disparate impact” regarding who is able to vote in America. Non-citizen residents of the United States are mostly non-white. Under CRT, it is trivially easy to argue that the basic idea “only citizens should be allowed to vote” is just a means to uphold white supremacy.

For that matter, illegal reentry isn’t the only crime in America that is prosecuted disproportionately against one group. Literally every crime in America is prosecuted that way. Judges wielding “disparate impact” as a weapon to advance CRT have the ideological toolset to justify rewriting the criminal code at will in the name of justice and “anti-racism.”

And rewrite they will. For now, the judiciary remains the friendliest branch of government towards conservatives and nationalists. But with each passing day of Democratic control, that becomes less true. Conservatives must prepare themselves for a future where radical judges are willing to obliterate core parts of the criminal code at will. And someday, they may have to ask themselves if there is a limit to what rulings they will accept.

 

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