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
The Origin of "The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race":
Orin points to a New Republic editorial that credits this quote to Judge Carlos Bea and Ted Olson:
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.
Note, though, that Judge Bea actually credited the forbears of his quote, and he didn't include Ted Olson. Here's what Judge Bea wrote:
Or, as more recently said by the late Justice Stanley Mosk of the California Supreme Court:
Racism will never disappear by employing devices of classifying people and of thus measuring their rights. Rather, wrote Professor Van Alstyne, 'one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment [n]ever to tolerate in one's own life or in the life or practices of one's government the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in *1222 life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.'
Price v. Civil Serv. Comm., 26 Cal.3d 257, 161 Cal.Rptr. 475, 604 P.2d 1365, 1391 (1980) (Mosk, J., dissenting) (quoting William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L.Rev.. 775, 809-10 (1979)).
The way to end racial discrimination is to stop discriminating by race.
Judge Mosk, of course, was generally seen as a leading liberal California Supreme Court Justice. William Van Alstyne had been on the ACLU National Board of Directors until three years before he published his Chicago law review article. Many Federalist Society members do share the view (as, polls suggest, do many Democrats) — but the quote's origin seems to be pretty solidly outside the Federalist Society.
More on the Origins of Justice Roberts's "Stop Discriminating" Language.--
As general background on the history of the nondiscrimination ideal, the best place to start is Andrew Kull's prize-winning The Color-Blind Constitution (Harvard Press). Kull details the rejection of the color-blind version of the 14th Amendment in favor of what was viewed at the time as the weaker and less radical version that was adopted. And he details the rejection of color-blindness, just a few years after a consensus was finally reached in 1964 that American law was to be color-blind. His last main chapter describes the shift away from color-blindness toward what Justice Brennan called "benign racial sorting." In the course of that chapter he describes the idea that the special contribution of American law to reducing discrimination might be to embrace nondiscrimination.
The idea that the best way to end discrimination is to stop discriminating was a common idea by at least the Reagan Administration. Here is Education Secretary Bill Bennett being interviewed in 1985 (source LEXIS/NEXIS), using language much like Stanley Mosk's from 1980:
What steps do you think should be taken to eradicate racial prejudice and discrimination? What steps should be taken, I guess, are the ones I laid out in my letter to the Equal Employment Opportunities Commission. That is, we should stop discriminating on the basis of race, sex, religion, and origin. Stop, stop, stop. That's where everybody wants to go. The best way to get there is to get there--that is, to stop. You do not eradicate an unfortunate legacy by perpetrating another unfortunate legacy. (Meet: William Bennett; the Secretary of Education; interview NEA Today June, 1985.)