Randall Kennedy, who is similarly an African-American law professor, issued a rebuttal to Butler suggesting that it was “profoundly misleading as a guide to action.” While agreeing that the criminal justice system is full of racial injustices from the bottom up, and administration of the law may be unfair, he disagreed with the portrayal of the system as one-dimensional and representative of ‘the white man’s law.’ He argues that there should be a distinction between policy and struggles against racism and the criminal justice system, which is meant to be impartial (even if it is not) and equitable. He argued the quote that the race card in criminal justice is “virtually always morally and legally wrong” as a justification in the attempts to emphasize that law and its elements such as trial by jury are meant to be impartial and adherent to the rules.
Doing what Butler recommends, essentially sabotages the system rather than fixing it, and while it may make a difference in some individual cases, it would reduce the meaning of jury trials and not produce long-term reforms. Kennedy suggests that racially based jury nullification is based on the sentiment that is destructive to the law and that racial kinship prompts people to care more about people of their own race.