Three Cheers (and Two Quibbles) for Professor Kennedy

Abstract

Professor Kennedy has written a great and wise book. Surveying "the bitterly contested crossroads" where race and the criminal justice system intersect, Kennedy places himself roughly equidistant from Justice Thurgood Marshall, for whom he clerked, and Marshall's successor, Justice Clarence Thomas. Rhetorically and politically, Kennedy's middle position renders him vulnerable to potshots from both left and right. But Kennedy defends his ground superbly with a wonderfully rich and eminently readable blend of historical narrative, doctrinal analysis, empirical survey, and commonsense argument. At every turn, Kennedy strives to steer between overstatement and understatement. Today's political right often suffers from amnesia about America's racist past and from complacency about its racial present, while today's academic left often refuses to acknowledge the real progress that we have made over the last two generations and the resulting complexity of our current situation. In response to both, Kennedy presents a third view - grim but not hopeless, passionate but not paranoid. Precisely because racism has been so real in our history and still exists today, we must take care not to trivialize the "r-word" by calling everything we don't like "racist." Precisely because blacks have suffered - and are continuing to suffer - as criminal suspects, defendants, and convicts on the one hand, and as victims of crime on the other, racial justice issues are complicated. Precisely because blacks disagree among themselves (as do whites and other racial groups) about the criminal justice system, many issues are not, well, black-and-white. In such a world, factual punctiliousness and fair-minded treatment of counterarguments are not merely scholarly virtues suitable for a Harvard professor publishing his first book, but democratic virtues appropriate for a public intellectual writing to help fellow citizens make sense of some of the most difficult and divisive issues of our day.