Although United States laws attempt to safeguard the rights and interests of minorities, the subordination of socially disfavored groups persists in part because of informal structures and networks that have the effect of perpetuating social inequality. Christopher Bracey, an expert in the fields of American race relations and civil rights and associate professor of law at Washington University in St. Louis, says that judges must respond to these destructive patterns of social and economic stratification through their interpretation of the law, or successful judging.
“Successful judging is judging deliberately styled to realize democracy for subordinated groups in American society,” says Bracey. “Judges play a critical role in shaping our democracy, especially in civil rights cases where, as often occurs, courts are called upon to mediate conflicts between majority rule and minority rights. Through these cases, judges interpret the Constitution to give content and meaning to our civil rights.”
Bracey says that when interpreting the law, judges must follow an antisubordination principle, the idea that a law is “objectionable on equality grounds if it has the effect of creating or reinforcing second-class citizenship on the basis of race, ethnicity, gender, or similar category.”
The Supreme Court’s decision in Brown v. Board of Education is a prominent example of this principle, as the Court “broke from the majority rule in the name of protecting minority interests,” notes Bracey.
In his article, “Adjudication, Antisubordination, and the Jazz Connection” (Alabama Law Review, Vol. 54), Bracey says inspiration on how to realize democracy through judging can be found through the free jazz movement, more specifically, the work of Ornette Coleman.
“If we understand jazz as reflective of the best of the American democratic tradition, then perhaps the most inspiring, liberatory figure in this metaphorical arrangement in Ornette Coleman — the consensus pioneer of ‘free jazz’,” says Bracey. “There is something deeply admirable about persons who self-consciously and intelligently challenge a prevailing set of orthodox arrangements.”
Just as Coleman’s pioneering work in the 1950s and 1960s offered a transformative vision that tested the boundaries of jazz while it simultaneously embraced the best of the historical improvisational traditions, a judge should interpret law to ensure the rights of socially disfavored and minority groups while remaining true to the foundation of U.S. law.
“Coleman’s steadfastness in the face of criticism highlights the importance of courage when challenging a prevailing set of orthodox arrangements,” says Bracey. “Courage is equally important when confronting opposition in the law.
“In cases where the rights and interests of members of socially disfavored groups are in jeopardy, judges should not reflexively indulge the status quo or the path of least resistance, but act affirmatively and forthrightly in a manner consistent with the best of the American constitutional, democratic, and free jazz tradition. In this way, judges can help nurture and sustain a culture of democracy that responds meaningfully to the crisis of social and economic inequality and moves us closer, as a nation, to realizing our democratic destiny.”