
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.
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