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Fordham Law School




The idea of biological race -- a conception of race that postulates that racial groups are distinct, genetically homogenous units -- has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer examination, the Court's apparent disbelief of racial biology is revealed to be as mythical as racial biology itself. This Article argues that the Court treats "race" as a legal term of art, using the term in a "technical," legal way to reference populations of people who are not presumed to be biologically or genetically homogenous. In treating race as a legal term of art, however, the Court essentially hedges its bets by leaving open the possibility that race, in its "scientific" usage, describes persons who are united by biology or genotype. In other words, while the Court has rejected racial biology in law, it has never rejected the possibility that, outside of law, race is actually a biological entity. By not shutting the door completely to biological race, the Court, and the law more generally, is complicit in the resuscitation of one of the most dangerous inventions of the modern era.

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