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:
Here was the surrounding passage in Justice Blackmun's Bakke opinion:
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)
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)
Related Posts (on one page):
- More on the Origins of Justice Roberts's "Stop Discriminating" Language.--
- The Origin of "The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race":
- Roberts, Blackmun, and the Rhetoric of Affirmative Action Cases:
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.
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.)
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.
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.
"The way to stop war is to stop having wars."
Which of the above statements paraphrases Ronald Reagan? Which one makes more sense?
Aren't there country clubs that work like that?
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?
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.
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.
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."
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.
I’m not sure what step two is but I’m fairly sure that step three is “profit.”
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.
“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.
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.
The Chief "has long been affiliated" with the Federalist Society? Because his name once appeared in a FedSoc directory?
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."