Roberts, Blackmun, and the Rhetoric of Affirmative Action Cases:
An editorial in the New Republic suggests that the end of Chief Justice Roberts' opinion in the recent Seattle school case — that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race"-- is some kind of special message passed among elite Federalist Society members. The editorial states:
Today, the view lives on in elite organizations like the Federalist Society, with which Roberts has long been affiliated. Indeed, the much-cited coda to Roberts's opinion--that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race"--is lifted almost verbatim from a 2005 dissent by circuit court judge Carlos Bea, also a Federalist Society booster, which itself recalls a slogan favored a decade ago by former solicitor general Theodore Olson, another Federalista.
  Did this phrase really originate among Federalist Society members, passed on from Olson to Bea to Roberts? I had viewed it as a pretty obvious play on Justice Blackmun's famous line in Bakke that "[i]n order to get beyond racism, we must first take account of race." Maybe my reaction is idiosyncratic, but I saw Roberts' phrase as a direct response to Blackmun.

  Here was the surrounding passage in Justice Blackmun's Bakke opinion:
I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.
  Given Roberts' position, inverting Blackmun's phrase strikes me as a pretty obvious rhetorical move. The power of Blackmun's phrase is that it seems to state a contradiction, pushing the reader to appreciate why the author sees the apparent contradiction as necessary. It takes the form, "In order to do X, we need to do anti-X." Roberts responds to Blackmun by taking out the contradiction. The new form becomes, simply, "The way to do X is to do X." Obviously different people will disagree on which side is right, but I'm puzzled by TNR's suggestion that the rhetorical point has somehow been passed along among Federalist Society members (presumably in secret rituals held in underground temples).

  A final thought: I vaguely remember reading that Blackmun probably took the phrase from a magazine article on affirmative action published shortly before Bakke. Does that ring a bell with any readers? I might have seen that in Linda Greenhouse's Becoming Justice Blackmun, but I don't have the book handy to check on it. (Hat tip: Howard)
Justin (mail):
Not saying that you're wrong, or that if you are wrong that validates the VRWC (which is shorthand for a very-much-existing, and perfectly rational organization and web of conservative interest groups, so I'm not sure why people deny its very existance - if one thinks the Federalist Society does not network with the AEI or the PLF, and that those 3 societies do not have strong connections to the last 3 Republican administrations, one will have to explain why that is not so).

But if Roberts wasn't meaning to recall Blackmun (and since Blackmun wasn't cited, It's not plainly clear that he was), would it matter where a particular conservative concept had its academic origins for this inquiry? If Roberts was quoting Bea, who was quoting Olsen, who was quoting X, who originally decided to make the play on Blackmun's line, how would this refute TNR's point, exactly?

Surely, the argument isn't that Roberts was never made aware of this line of thinking and independently came to it himself. It's not a rediculous theory that perhaps Bea and Roberts's idea comes from the same source. The New Republic surely deserves their share of criticism, and if this is the lead example of the sinister nature of Justice Roberts, then that itself deserves some contempt - but I don't think I agree with the exact line of criticism here.
7.17.2007 10:50am
Isn't it possible that you're both right? It's certainly plausible that various conservatives adopted the line as a response to Blackmun's. Now Roberts has joined them. Maybe all who are using it know its original thrust, maybe they don't. I think TNR's point was that not that this was some kind of right-wing code, but rather that Roberts' oft-quoted line is not particularly creative.
7.17.2007 10:51am
Ted Frank (www):
I fail to see the problem. The article is accusing members of the Federalist Society of opposing discrimination on the basis of race. Guilty as charged. The scandal is why TNR finds that remotely controversial.
7.17.2007 10:55am

If you feel that that my argument doesn't matter to you, you're certainly entitled to that view.

BTW, after publishing my initial post, and about the same time your comment was posted, I took out the "Vast Right Wing Conspiracy" line and amended the post a bit to make the point clearer. (I say this just so you don't feel that I was somehow changing the post unfairly.)
7.17.2007 10:57am
law clerk (mail):
I find it interesting that Blackmun wrote "In order to get beyond racism, we must first take account of race" (emphasis added). What would Blackmun have thought should be done second?

I'm no expert in this area, and I'd be curious if others could enlighten as to whether Blackmun might have agreed with Roberts but disagreed about his timing, i.e., that eventually we must stop taking account of race, but that the time is not yet ripe to do so.
7.17.2007 11:00am
nyclerk (mail):
Maybe both Orin and TNR are overthinking this. Is Roberts' phrase really such a clever bon mot that it needs to self-consciously referencing Blackmun or be passed around the Federalist Society? I'd say its an obvious enough point to make if you oppose affirmative action, and it seem likely that multiple people could use a version of it over the course of a decade without there being a connection between each use. Certainly you hardly need to be replying to Blackmun's Bakke opinion in order to think its a good line.
7.17.2007 11:06am
DavidBernstein (mail):
I think variations on Roberts theme have been around as long as racial preferences have been around. The more interesting question is, whatever happened to opposition among liberals to racial quotas? Groups like the ADL, magazines like TNR, etc., used to be at best opposed to quotas, and sometimes opposed to any government distinctions based on race, but this seems to have totally evaporated.
7.17.2007 11:17am
DavidBernstein (mail):
And btw, don't have time or inclination to blog it, but the entire TNR editorial is extraordinarily silly, and whoever wrote it doesn't seem to understand the basic point that a 14th Amendment remedy applies only when there is a 14th Amendment violation.
7.17.2007 11:19am
Anon. Lib.:
I would respectfully suggest that you try to minimize posts singling out an argument (or even, as here, a meta-argument)about an important issue for criticism but avoid sharing your thoughts on the merits of that issue. This shifts the focus of debate from the merits to atmospherics surrounding it --- i.e., instead of looking at whether liberals or conservatives have the better argument about Roberts' claim, it puts the focus on whether liberals have some strange ideas, thus implying that their views of merits are also strange and can be safely ignored. It would be easy to make this same point about the NR in a post that touches on the validity of Roberts' contention. You could simply say (1) Person/organization made argument against x for y reasons, (2) y reasons are specious for z reasons, (3) I think x is better evaluated in n terms, and (4) based on n, I think x is correct/wrong/I can't decide. After all, isn't the validity of Roberts' point a much more important and interesting issue than NR's view of its genesis?

Lastly, I think, based on your excerpt, that NR is doing the same thing and, perhaps, deserves this sort of treatment. Instead of addressing the merits they are framing Robert's assertion as something propagated by a radical cabal, which, therefore, can be ignored. Notwithstanding NR's unclean hands, I don't think critiquing meta-criticisms will do anything but encourage people who are inclined to consider this issue to focus on meta-narratives rather than the actual issue.
7.17.2007 11:32am
R. Loblaw (mail) (www):
To answer your last question - your recollection is correct. Greenhouse reported that the unattributed phrase in Bakke came from an Atlantic Monthly article by McGeorge Bundy. At a law clerk's suggestion, Blackmun read the article while drafting the opinion.
7.17.2007 11:40am
Steven Lubet (mail):
"In order to have peace, we must first prepare for war."

"The way to stop war is to stop having wars."

Which of the above statements paraphrases Ronald Reagan? Which one makes more sense?
7.17.2007 11:41am
Drat; the "secret coded message enclosed in the United States Reports" seemed so much more fun for the tinfoil-hat crowd.
7.17.2007 11:46am
Anon. Lib. writes:
I would respectfully suggest that you try to minimize posts singling out an argument (or even, as here, a meta-argument)about an important issue for criticism but avoid sharing your thoughts on the merits of that issue.
Sorry, Anon. Lib. I don't find the merits of the issue at all interesting, and I generally don't blog about topics unless I think there is something interesting about them.
7.17.2007 11:54am
DiverDan (mail):
The distinction between Justice Blackmun's phrasing and Justice Roberts' notable ending to the School Cases reflects not just a difference of opinion on how to reach a mutually desired end, but a deep philosophical rift between the two in the proper function of government under our constitutional republic. Blackmun viewed government as a necessary tool to eradicate social evils, and, quite rightly, viewed racism as a social evil. He viewed race-based remedies using the coercive power of government as necessary to force integration and thus alter individual thinking on race. In effect, Blackmun believed that government could use its coercive power, and infringe upon personal freedom of association and thought, to change wrong-headed opinions about race. Roberts sees a much more limited role for government, and puts a much greater importance on personal liberty; as Roberts sees it, the only racism that government can legitimately end by judicial fiat is government sanctioned racism. Government has no place in forcing people to think differently about race (though it may regulate their actions, by prohibiting discrimination in housing, employment, and public accomodations), and should not use its coercive power to infringe upon freedom of thought or association, even if it disapproves of the basic notion of racism. So, does agreeing with Roberts make one a "fellow traveler" with the racists (or perhaps a closet racist), as so many liberal commentators have accused? Or just a limited government libertarian?
7.17.2007 11:59am
Am I the only one who finds it funny that TNR is now denouncing "elitism"? I'd like to see the demographic profile of their subscribers. In addition, they don't like to publish "uninvited essays." You have to be *invited* to join.

Aren't there country clubs that work like that?
7.17.2007 12:07pm
JWB (mail):
Orin Kerr writes:

Why do you assume I have settled views on the merits?

I think Anon. Lib.'s point was that the current meta-discussion, about the critical techniques used by commentators to critique Roberts' opinion, distracts from a discussion of the opinion's merits. And, perhaps more perniciously, by revealing the questionable methods employed by those who critique Roberts, the discussion might lead us unjustifiably to think Roberts' opinion more sound because of our distrust for his detractors.

It's not that a post about the methods of critiscism isn't an interesting subject. It's just that it has nothing to do with the evaluation of Roberts' ideas, and it shouldn't substitute for a proper evaluation.

And in terms of "unsettled opinions on the merits," if you have nothing to say about it, why say anything?
7.17.2007 12:09pm
JWB, I have unsettled opinions about tons and tons of things. If having unsettled opinions about the merits of issues made it improper to discuss any aspect of them, I would not be able to blog about anything except jazz.
7.17.2007 12:22pm
Christopher M (mail):
I think Prof. Kerr has misread the TNR editorial he's criticizing. His question "Did this phrase really originate among Federalist Society members...?" flatly mischaracterizes the editorial, which never says or suggests that the phrase originated among Fed Society members. In fact, the sentence directly preceding Prof. Kerr's quotation says: "As it happens, it's a reading that's been percolating for decades, though it has never achieved currency outside a relatively small group of conservative legal activists and scholars." (Emphasis added.)

The editorial's claims, rather, are that (1) Roberts' opinion in Parents Involved takes the key holding of Brown v. Board to be the formal one that government may not (in general) take account of race in assigning students to schools; (2) this is a revisionist interpretation, as the legal mainstream has generally read Brown as a case about the harms inflicted on a minority race by government-sponsored exclusion of that minority from the schools attended by the majority; and (3) the revisionist view has been around for a long time, but is now chiefly held and propagated by conservatives like those in the Fed Society.

These are contestable propositions, to be sure, but Prof. Kerr's criticism seems off-base.
7.17.2007 12:49pm
Christopher M,

I believe you are confusing the general question of the position with the specific question of the origins of the phrase used to support it. Yes, the editorial says that the position has been percolating for decades. But it then changes gears and makes a comment about where the phrase from Roberts' opinion originates; it's that specific question that is the subject of this post.
7.17.2007 12:57pm
Monkberrymoon (mail):

"In order to have peace, we must first prepare for war."

"The way to stop war is to stop having wars."

Which of the above statements paraphrases Ronald Reagan? Which one makes more sense?

I guess they both make sense, because they certainly don't contradict each other. If you want them to be in conflict, you'd have to rephrase the first one to read, "In order to have peace, you have to make war."
7.17.2007 1:19pm
Christopher M (mail):
Prof. Kerr,

The editorial says that the position (1) has been percolating for decades, (2) hasn't "achieved currency" outside conservative legal circles, and (3) "lives on" in organizations "like the Federalist society" (which, in context, pretty clearly means something like "conservative legal organizations." Then it backs up claim #3 -- a claim about who currently advances the position -- by noting that Roberts' formulation strongly echoes a phrase in Judge Bea's dissent, which "recalls a slogan favored by" Ted Olson -- presumably his 1996 statement that "racial discrimination perpetuates racial discrimination, and if we are ever to get beyond that regrettable chapter in our nation's history, it is time to stop doing it for all purposes."

Again, it makes no claim about the ultimate origin of the phrase. And its claim about the Olson -> Bea connection is only that Bea's line "recalls" Ted Olson's phrase, which hardly seems tantamount to saying that Roberts' formulation is "some kind of special message passed among elite Federalist Society members," as your post says. You're seeing a conspiracy theory where no one has propounded one.

Rather, the editorial says the position's been around for a while, but is now mostly advanced by Fed-Society-style legal conservatives, and then it supports that point by quoting Judge Bea and alluding to Ted Olson. Your point that the rhetoric is a response to Blackmun's Bakke opinion is well and good as far as it goes, but it just doesn't contradict anything in the editorial.
7.17.2007 1:44pm
Thorley Winston (mail) (www):
I find it interesting that Blackmun wrote "In order to get beyond racism, we must first take account of race" (emphasis added). What would Blackmun have thought should be done second?

I'm not sure what step two is but I'm fairly sure that step three is "profit."
7.17.2007 1:52pm
Mark F. (mail):
Interesting how the 14th Amendment, which was in no way intended to outlaw segregated schools, has now been rewritten to the tastes of both liberals and conservatives. Original intent? What a joke. It's dead. Brown was in the same mould as Griswald, Roe and Lawrence. New Constitutional rights out of thin air.
7.17.2007 2:16pm
Charlie (Colorado) (mail):
Even more to the point, perhaps, who cares and why should it matter? Someone used a one-line trope from someone else who more or less agreed with them.

Other, of course, than the fact that the Federalist Society is the spawn of Satan who should be locked up and disbarred lest their conservative viewpoint contaminate the law.
7.17.2007 2:24pm
Well, Orin, you might not have to literally stop blogging about anything but jazz. But you might be reduced to responding to every issue, pace Satchmo, with "If you've got to ask, you'll never know."
7.17.2007 2:42pm
subpatre (mail):
There's another way to read the phrase:
"In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently."

Wrong. First any law or remedy must be constitutional and meet the criteria (defense, general welfare, health, safety) for government functions. That viewpoint's believed by a large percentage of Americans, and fuels their perception of elite, out-of-touch justices.
7.17.2007 3:21pm
Anon Clerk:
Prof. Kerr:

I'm afraid the the editors of TNR are correct, and you're sadly mistaken. The Chief Justice used the phrase on explicit instruction from the Grand Council of the 13. I can only assume that you did not get the memorandum concerning the new catchphrase because you're still showing up for gatherings at the secret underground sanctum. Please be advised that the secret meetings of the Federalist Society are now held in the Secret Library in the National Cathedral. (The underground sanctum went out of fashion once Nick Cage made National Treasure.)

I have you down for the sheep dip for the next meeting. Please contact us if you will be unable to attend.
7.17.2007 7:43pm
Today, the view lives on in elite organizations like the Federalist Society, with which Roberts has long been affiliated.

The Chief "has long been affiliated" with the Federalist Society? Because his name once appeared in a FedSoc directory?
7.17.2007 8:10pm
Thanks, Anon Clerk. Yes, the sheep dip is right.
7.18.2007 5:32am
James Fulford (mail):
Tamar Jacoby wrote about this here:

It was this understanding that produced his last, and perhaps most significant, achievement in the realm of race relations—his role in the Supreme Court's Bakke decision endorsing the use of racial criteria in university admissions. Bundy's contribution was an article in The Atlantic making the case for affirmative action. It was, even for Bundy, an unusually subtle and brilliant argument—but if that was all it was, it would hardly matter today. What made it important was its impact on one particular reader: Supreme Court Justice Harry Blackmun, who provided a crucial fifth vote in favor of the use of racial criteria. His short opinion on the case was so close to Bundy's piece that it all but quoted him. "Precisely because it is not yet 'racially neutral' to be black in America," Bundy wrote, "a racially neutral standard will not lead to equal opportunity." Thus, he concluded. "To get past racism, we must here take account of race." Blackmun borrowed the phrase almost verbatim, and it has stood for a dozen years as the nation's primary rationale for affirmative action. For better of worse, it encoded the key idea of the late 60s-that racial progress can come only through racial consciousness-at the center of American law.

The McGeorge Bundy article is here:

The Issue Before the Court: Who Gets Ahead in America?
Atlantic Monthly, November 1977, or the subscriber link is here.

Cultural note: when Bob Dylan was asked "What would be your first act if you were elected president of the United States?"he answered "Make McGeorge Bundy change his name."
7.18.2007 2:51pm