Critical Race Theory assumes multiple ideas, such as (1) racism is an essential element of American culture; (2) White over Black involves not only material social relations but also has an immense ideological presence in society; (3) this presence is what Critical Race Theorists call “racism as a social construct,” where individuals are limited in their free agency because they are bound by their particular social class; and (4) law is an important glue that legitimizes this hierarchy of race, class and gender inequality.
Critical Race Theory has its intellectual roots in the ideas of legal realism scholars of the late 19th and early 20th centuries, such as Oliver Wendell Holmes Jr., Karl Llewellyn and Benjamin N. Cardozo. In 1881, Holmes, later a U.S. Supreme Court justice, wrote The Common Law, which stated, “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”
In 1907, Charles Evans Hughes, then governor of New York and later chief justice of the United States, said that rather than an impartial document protecting the rights of all, “the Constitution is what the judges say it is.” In 1921, Cardozo, then a judge on the New York Court of Appeals and later a U.S. Supreme Court justice, wrote in The Nature of the Judicial Process that the legal profession should recognize and understand “sociological jurisprudence,” the impact of societal norms on the law. The passage of Progressive-era social legislation represented the growing consensus that legal realism rejected the earlier liberal concept that Lady Justice is blind. The legal scholar Karl Llewellyn, of Yale and Columbia law schools, in 1930 published “A Realistic Jurisprudence—The Next Step,” and in the same year another legal scholar, Jerome Frank, who taught at Yale Law School, observed, “Law may vary with the personality of the judge who happens to pass upon any given case.” For the legal realists of the first decades of the 20th century and their intellectual heirs today in Critical Legal Studies and Critical Race Theory, “Lady Justice” always peeks through filters that see the social condition and social relations from which case law emerges, not blind justice. These legal realists laid the foundation for today’s Critical Race Theorists.
Critical Race Theory and Critical Legal Studies appeared within scholarly writing almost simultaneously in the 1970s. As Critical Race Theory legal scholars interacted in conferences across the U.S., they welcomed a variety of non-legal influences, ranging from Marxist theorist Antonio Gramsci to recently deceased social and political activists such as Malcolm X and Martin Luther King Jr.
Harvard Law Professor Derrick Bell and Alan David Freeman of the University at Buffalo Law School emerged as the earliest proponents of Critical Race Theory following the publication of two influential articles. Bell, a civil rights attorney during the 1960s, published “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation” (1976), while Freeman penned “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” (1978). Bell in his essay observed, “The quest for symbolic manifestation of new rights and the search for new legal theories have often failed to prompt an assessment of the economic and political conditions that influence the progress and outcome of any social reform improvement.” Freeman observed that “the color-blind theory has never [been] the law; the Supreme Court has, in fact, explicitly upheld the use of racial classification on a number of occasions.”
The first major national conference dedicated wholly to Critical Race Theory was held in Madison, Wisconsin, in July 1989. The conference, called “New Developments in Critical Race Theory,” was organized by Kimberlé Crenshaw, a UCLA law professor, with Neil Gotanda and Stephanie Phillips.
At this time, Richard Delgado, later a University of Colorado law professor, became a prominent voice in his writings as a leading critical legalist. He teamed with co-author Mari Matsuda to deconstruct the racism in the American legal system.
Proponents of Critical Race Theory explain how the social condition of inequality is driven by racist human and juridical volition, which gives constitutional case law a rigidly conservative structure. Lewis Steel’s 1968 essay “Nine Men in Black Who Think White” was the clarion.
Just as Critical Race Theorists included non-legal scholars to advance their arguments, some of them recognized the power of stories and narratives to push back against dominant legal theories that reinforced unequal power relationships between social classes. Delgado, writing in 1989, argued that since “…it is the prevailing mindset by…members of the dominant group [to] justify the world as it is, with whites on top and browns and blacks at the bottom…. Stories, parables, chronicles, narrative are powerful means for destroying that mindset….”
Bell’s 1985 Harvard Law Review foreword, “The Civil Rights Chronicles,” introduced his fictional civil rights lawyer Geneva Crenshaw, whose tales included “The Chronicle of the DeVine Gift,” a parable about an elite law school that stops hiring faculty of color once their numbers grow. Bell’s other writings use parables and stories to explain why he took a leave of absence with a forfeiture of salary from Harvard Law because of the law school not hiring women faculty of color. Black students had protested years earlier over Bell’s departure from Harvard, and two of those student leaders were Kimberlé Crenshaw and Mari Matsuda. To explain his position, he wrote Confronting Authority: Reflections of an Ardent Protester (1994). Five years after his 1985 chronicles, Michael A. Olivas supported Bell with his noted 1990 essay “The Chronicles, My Grandfather’s Stories, and Immigration Law: The Slave Traders Chronicle as Racial History.” Olivas discusses his grandfather’s stories describing the need to work hard and sacrifice. His grandfather was a folklorist and used the term “sin vergüenza,” or shameless and without honor, when referring to Anglo-Texans and their white supremacy. Olivas wrote, “Folklore and corridos . . . will inform racial jurisprudence [on the impact]. . . of United States racial history . . . and immigration practices.”
Critical Race Theorists recognize that narratives encased within judicial and legislative semantics reveal race, class and gender interests. This point is illustrated by the famous dissent by Justice John Marshall Harlan in Plessy v. Ferguson (1896): “Our Constitution is color-blind,” Harlan declared. He then prophetically warned that the words “separate but equal” would “…stimulate aggressions…upon the admitted rights of colored citizens.” Harlan’s dread warning came true when the Klan began its lynching reign of terror from the 1890s to the 1930s.
Ninety-three years later, conservative Justice Antonin Scalia, concurring in the 1989 case City of Richmond v. J. A. Croson Co., used Harlan’s idealistic words that the Constitution is color-blind to argue for a retrenchment against expanded Black civil rights. Scalia, repeating Harlan’s words but with a very different goal in mind, said, “Discrimination on the basis of race is illegal” because “our Constitution is color-blind,” thus ending the efforts of a Southern city to upend the consequences of centuries of racial discrimination.
While Critical Race Theorists are principally known for examining the law and its execution to detect the role of race in reinforcing existing social structures in White-Black relations, they were also the first legal scholars to promote the idea of intersectionality, literally going beyond the Black-White paradigm to examine the range of oppressions affecting a variety of racial, ethnic and gender groups who ironically form the majority of the U.S. population. These theorists, beginning in the 1990s, explored the complexity of these often overlapping and intersectional oppressions. Note writers such as Lisa C. Ikemoto, Francisco Valdes, Juan F. Perea, Angela P. Harris, Lani Guinier and others.
In essence, Critical Race Theorists seek to explain why liberal legal formalism centered on the idea of “color-blind” justice is dead. Yet, more than simply deconstructing the myth of blind justice, they pose the more crucial question: Does law have the capacity to resolve the social condition of inequality impacting America’s dispossessed groups by race, class and gender?
Lani Guinier, whom President Clinton nominated in 1993 to be assistant attorney general for civil rights, was an early advocate of what is now called diversity, equity and inclusion (DEI), but conservatives branded her a “quota queen” over her writings on voting rights, and Clinton withdrew the nomination before she could take the post. By the last year of his first term, Donald Trump’s attack on diversity had emerged as the battleground in the ongoing culture wars, prompting discussions and demonstrations about racism in American life and culture. Today, Trump continues his attack on diversity with his numerous White male appointments, such as Pete Hegseth. His appointment, as with many others, has led critics to coin a new political term: White, privileged and unqualified. Hegseth, a major in the Minnesota National Guard, replaced Gen. Lloyd Austin, a Black man who earned his airborne rank and served as field commander in several military engagements, as secretary of defense. Trump’s conservative appointments to the high court have rolled back the liberal and progressive gains of the prior Warren Court, e.g., the gutting of the Voting Rights Act of 1965 in Louisiana v. Callais (2026), a 6–3 decision that left Section 2 all but unenforceable after Shelby County v. Holder (2013) had already ended the act’s preclearance requirement. However, the high court maintained legal formalism when it upheld the 14th Amendment’s birthright citizenship clause in the 2026 case of Trump v. Barbara.
Critical Race Theory has had a strange intellectual history that has meandered through numerous legal minds as well as within social movements. The intelligentsia of these movements have attempted to use Critical Race Theory to indict law as the legitimizing cultural social structure that cements the social conditions and social relations of oppression. The question of whether they will succeed in persuading the larger legal community or the larger American society that their interpretation is correct is now a matter of intense ongoing debate.
A really informative and well written essay.