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)