Document Type

Article

Publication Date

2004

Abstract

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no successors. This Article proposes an explanation for the absence of successful race discrimination claims against the federal government. The absence, it argues, is not a function of a lack of federal discrimination. Rather, it is a function of shared norms between the federal judiciary and the political branches of the federal government. The federal courts and the other branches share a view of what constitutes unconstitutional discrimination, such that conduct the federal courts are willing to call "discriminatory" is largely activity that the other branches do not engage in, at least not as a matter of official policy. When federal officers depart from official policy and engage in unauthorized discrimination, subconstitutional rules created by the other branches are sufficient to police their behavior. Accordingly, there is little evidence that reverse incorporation has done much independent work in checking federal racial discrimination.