There are three separate trials unspooling across the country this week, each of which tells some version of the same story about the inadequacies of the American legal system to contend with racial justice. Each illuminates the ways in which even the most basic precepts of the justice system rely on whiteness, and its suspicion of the very existence of racism, as a proxy for neutrality or objectivity.
In Charlottesville, Virginia, jury selection opened Monday in the federal civil trial of 24 white supremacist and racist groups and individuals who allegedly came to the town in August 2017 and provoked the violence and chaos that led to the murder of Heather Heyer. In Madison, Wisconsin, pretrial proceedings are underway in the criminal trial of Kyle Rittenhouse, the teenager who traveled to a Black Lives Matter protest in Kenosha where he shot and killed two protesters and wounded another. The shooting happened on Aug. 25, 2020, at an anti-racism protest two days after police shot a Black man, Jacob Blake. In Brunswick, Georgia, jury selection slogged on into its second week, in the trial of Gregory McMichael, Travis McMichael, and William Bryan, three white men who stand accused of chasing down and murdering an unarmed Black man, Ahmaud Arbery, while using racist slurs.
Each of these three trials rests on the knife’s edge of an existential, real-time American conversation about race and violence—one that touches on ongoing debates about policing, guns, hate crimes, and vigilantism. But as each of the three cases progress to trial, each also reveals how every legal decision—indeed every twist and turn of legal language itself—rests on ideas about neutrality, due process, and fairness, and how these ideas always seem to buckle when confronted by real questions about race. We are asking the justice system to solve intractable racial justice problems that no other institution—not politics, not the media, and not academia—can resolve. No wonder these choices being made in courtrooms about language and law and competing claims of victimhood are going so poorly.
In Kenosha, Wisconsin, this week, County Circuit Court Judge Bruce Schroeder made headlines when, according to his standard trial procedures, he ruled that two men fatally shot by Rittenhouse—Joseph Rosenbaum and Anthony Huber—and one he wounded—Gaige Grosskreutz—could not be referred to as “victims” in his courtroom. Schroeder did, however, rule that defense attorneys could refer to them as “looters, rioters, or arsonists” if they could prove as much. “The word victim is a loaded, loaded word,” Schroeder said, taking it off the table, as if the words “looters” or “rioters” are not.
That choice right there sums up the issue: If the murdered racial justice protesters aren’t the “victims” in this trial, who is? Rittenhouse? He contends he shot the men in self-defense. But must we be open-minded about whether his decision to travel across state lines to a racial justice march with an AR-15-style rifle was because he was afraid for his own life? Does the fact that police gave him water and thanked him for being there just minutes before the shooting (the state sought to suppress that evidence) diminish his culpability or increase it? Was his an act of white domestic terrorism or the honorable act of citizen policing an anti-white race riot?
Answering these questions requires an assessment of Rittenhouse’s character. The right has idolized him as a hero. The left claims he is the embodiment of domestic terrorism. In court, a jury will have to decide which interpretation best explains Rittenhouse’s actions that day. But these extreme assessments, and the constraints of the legal system itself, sideline any consideration of the forces that drew him, and countless others like him, to a protest that began as a backlash to the police shooting of an unarmed Black man. Even as his trial is hailed as yet another national test of racial justice, the court will be unable to contend with the resurgent specter of white extremism that has roused so many armed young white men with no obvious history of violence or radical views out of their homes and into the streets.
A similar erasure is taking place in Charlottesville, where the plaintiffs in the civil trial against white supremacists have had to dust off the Ku Klux Klan Act of 1871 to enforce the civil rights of victims of racial hate in order to hold armed Nazi sympathizers to account. Yet jurors were being dismissed for cause for merely suggesting that white supremacist defendants were “evil” or, in the case of a potential juror, for admitting that “I lived here in this town. … I knew people that were assaulted, people were hurt. That poor girl is dead.” Another potential Black juror, who said she hoped she could be fair, was struck because according to Chris Cantwell—one of the white supremacists defending himself—“she seems to be very concerned about race. … She is worried about racism in all categories except against white people.” Yet a prospective juror who described Black Lives Matter as “a sham … lie-filled, I believe it to be strictly motivated toward unfair goals and nothing more than a bunch of people trying to take advantage” will be permitted to serve.
In other words, as far as jury selection goes, Black jurors who worry about anti-Black racism are deemed per se biased, unless they see racism against whites as equally problematic. The message becomes that the only qualified jurors seem to be those who express an openness to ideas about white supremacy and Nazism as a lifestyle choice. Judge Norman Moon has, to be sure, tried to focus jurors on whether they can be fair, as opposed to whether they have formed no opinions on Nazis, but to be open-minded about Nazis is not in fact a neutral legal position. We are all being asked to inhabit a world in which it must be.
In Georgia, where the McMichaels and Bryan have been charged with federal hate crimes, defense attorneys have looped themselves into a Slinky by insisting that the case is not about race at all. Yet they continue to question potential jurors on the subject. To find racially “objective” jurors, the defense is asking the same sorts of questions prospective jurors in Charlottesville are receiving: “Do you support the Black Lives Matter movement? Do you believe Black people are unfairly treated in the criminal justice system? Have you participated in racial justice demonstrations?” Answering yes—suggesting that anti-Black racism exists or is a problem—seemingly disqualifies one from serving on a jury in a case in which the defendants are also charged with a racially motivated hate crime against a Black man.
Like Rittenhouse, Bryan and the McMichaels’ attorneys argue the three men acted in self-defense. They have also filed a motion to prevent the prosecutor from referring to Arbery as a “victim” in court as well as a motion to prevent the McMichaels’ phone conversations, which may contain evidence of racial prejudice, from being allowed in the courtroom. Just like in the Rittenhouse case, their defense rests on an inversion of the concepts of victim and perpetrator, a move with long-standing racial implications. In addition, while the defense is actively working to cobble together a “neutral” jury composed of people whose minds are not yet made up about the existence of racism, they are also actively working to conceal any indication that their clients hold racist beliefs.
Taken together, all three cases showcase the limits of our legal system’s capacity to deal squarely with racism. In the eyes of the courts, racism itself is treated like an open question, something for the jurors to work out for themselves, over the course of the trial. In popular media, each case is framed as a “litmus test” for racial justice or so-called racial relations in America, but inside the courtrooms, just acknowledging the existence of historic structural racism forms the basis for striking jurors. There is no room in the court for history or context— for an analysis of the current climate of growing political violence, the resurgence of white extremism, or the enduring legacy of racism in the South. The defense teams are hard at work to scrub any semblance of their clients’ racial hatred from the court record while also intimating that same hatred might in fact be reasonable. The end result is that racism is both everywhere and nowhere at the same time in these courthouses.
It’s a perfect legal replication of the underlying problem: a framing that maps precisely onto Donald Trump’s original, disastrous reaction to the violence in Charlottesville in 2017, urging that there are very fine people “on both sides” of the violent white supremacy movement, or that Black Lives Matter, an organizing principle formed in reaction to an extrajudicial killing of an unarmed Black teenager, is functionally identical to alt-right chants of “Blood and soil.” To ensure “justice” is served for both the plaintiffs and the defendants, the legal system evaluates these competing claims as equal and, in so doing, diminishes the force of one while essentially power-washing the other.
Ultimately, these cases are profoundly about race. But the requirement that we must start from a position of “neutrality” about racism tells us almost everything we need to know about the supposed neutrality of the legal system. In the cases of Rittenhouse and Jason Kessler, the legal system asks us to treat racially motivated, white supremacist violence as a reasonable, possibly justifiable, reaction to protests for racial justice. In Georgia, the legal system asks us to consider the defendants’ actions outside of any damning historical context. This is precisely the worldview white supremacists seek to promote: one that positions their actions as a pendulum swinging in an inevitable and understandable backlash against their perceived loss of status.
We desperately want each of these lawsuits—indeed all of these lawsuits—to provide a moment of purifying accountability around the horrors of racism. We’ll watch for their verdicts to ensure that we, as a society, are still on some kind of road toward progress. But even if the verdicts go the right way—and they might—we must realize that a system that first barters away the horror, excludes it as evidence, removes its labels, and then sidelines the very jurors who name it is the one we are still forced to argue in. And that might say more than the rulings ever could.
Disclosure: Dahlia Lithwick lived in Charlottesville in 2017 and was affected by the events. She is friends with plaintiffs’ counsel in this case.