At some point, the result-oriented crowd is just going to have to throw in the towel and admit that the Federalist Society is a mainstream entity and that their decades-long attempt to smear the Federalist Society via conspiracy innuendo was a failure.

Too many people are vested in the enforcement of racism. If your job is "director of diversity" and you can't discriminate based on race, what is your function?

It is really amusing to hear a senior partner lament the lack of diversity at a law firm. We make great efforts to hire all the proper minorities. There just aren't that many available who can do the work.

Judge Mosk manifestly did NOT make the tautological claim, and what he did say would not have prevented a different ruling in the Parents Involved case.

I think there's a typo in there; you apparently hit "shift" instead of "delete," such that NOT was capitalized rather than omitted from your statement.

And since what the Seattle/Louisville school boards were doing was "employing devices of classifying people and of thus measuring their rights," since what the school boards were doing was "the differential treatment of other human beings by race," since what the school boards were doing was "treat[ing] any person less well than another or to favor any more than another for being black or white or brown or red," then of course what he said would have prevented a different ruling in Parents Involved.

But assume it did have a liberal origin. Why would conservatives want to brag about that? In what way would that make it better as far as conservatives are concerned?

I would think the answer there would be obvious: liberals have no legal, logical, or moral argument for their position in Parents Involved, so they sit there and play the racism card, claiming that the decision is a repudiation of Brown by racist conservatives who never supported it. By showing that the decision has a liberal pedigree, it exposes as ludicrous the claims of liberals to still be fighting the civil rights fight.

now comes the claim that Roberts' simplistic approach to school integration cases is a grand liberal ideal. I don't get it either.

You may have a point. Perhaps conservatives are too optimistic in hoping that liberals aren't REALLY racist.

I think all of the commentators except the first is entirely missing the point of this post. It really has very little to do with the rightness or wrongness of Roberts' opinion, whether he was respecting precedent, whether the result in Parents Involved is liberals hoist on their own petard, etc. What it has to do with is this: The New Republic article is attempting to posit some right-wing (esp. Federalist Society--every lib's favorite boogeyman these days) conspiracy to eliminate racial preferences and is illustrating it by the origin of what the Chief Justice said. What Eugene is doing is pointing out that that portion of the argument is flawed because it can be traced to a liberal origin and has nothing to do with Ted Olson et al.

But assume it did have a liberal origin. Why would conservatives want to brag about that? In what way would that make it better as far as conservatives are concerned?

Conservatives don't mind tracing the idea to liberals because it demonstrates that liberals have dropped the torch as far as fighting racial discrimination is concerned.

Also, conservatives may be less troubled by identifying good ideas wherever they come from rather than falsely shoehorning them into one group or another. For example, Professor Volokh has demonstrated that the New Republic seems pretty desperate to assign this idea to the Federalist Society. And Mark Field seems positively baffled that conservatives would adopt an idea that originated outside their movement. Maybe you should focus less on labelling everyone and their ideas into their own isolated groups and start evaluating folks and ideas based on their quality?

liberals have no legal, logical, or moral argument for their position in Parents Involved,

The dissenters in Parents Involved argue that racial classifications that foster racial supremacy are distinguished from racial classifications which fight racial supremacy. You can disagree with the argument, but don't say it is not based in law, logic or morals.

You may have a point. Perhaps conservatives are too optimistic in hoping that liberals aren't REALLY racist.

It must be the older conservatives who are being optimistic, as long as I’ve been alive the political left has ALWAYS been racist particularly the ones who try to rationalize their bigotry in the name of “civil rights.”

The New Republic article is attempting to posit some right-wing (esp. Federalist Society--every lib's favorite boogeyman these days) conspiracy to eliminate racial preferences and is illustrating it by the origin of what the Chief Justice said. What Eugene is doing is pointing out that that portion of the argument is flawed because it can be traced to a liberal origin and has nothing to do with Ted Olson et al.

TNR is likely all wet if it is tracing Roberts to Brea to Olsen to establish a conspiracy. However, does anyone doubt the rigid interpretation of Brown embodied in Robert's quote is almost exclusively the province of conservative legal thinkers such as the Federalist Society?

OT trivia about Stanley Mosk: In 1938, science fiction author Robert A. Heinlein ran for California Assembley, representing the Hollywood district (he lost to Charles Lyon). Stanley Mosk was a supporter, having signed the nominating petition. (Campaign contributors included Melvyn Douglas and F. Scott Fitzgerald (Heinlein's wife had worked in the movie business prior to their marriage), and "Lloyd Wright", who I believe was the architect Frank Lloyd Wright).

The TNR editorial doesn't actually posit any "conspiracy theory." All it says (in the relevant section) is that Roberts' Parents Involved opinion reads Brown as a case forbidding the government from taking account of students' race in assigning them to schools; that this is a revisionist position, since the legal mainstream has viewed Brown as a case about systemic discrimination against a socially disadvantaged minority; and that proponents of the revisionist view are generally Fed-Society-style legal conservatives. It then backs up that latter claim by citing Judge Bea's dissent and alluding to a similar statement by Ted Olson. That's all. It's not a conspiracy theory; it's just disagreement.

On the substance, the disagreement seems pretty straightforward. On the one hand, it would be nice if one's race played no role in determining what social benefits one gets; on the other hand, it would be nice if the white majority didn't enjoy systematic social advantages, largely resulting from a historical legacy of racism. Conservatives either disagree with the premise of the second principle or think that the first is more important; liberals agree with the second and think that it outweighs the first.

Ah, the usual conservative tripe that liberals are racist.

As long as some are painting all conservatives and liberals with a certain broad brush, so will I.

Conservatives are just as racist as they claim liberals are. Conservatives seem to focus more on individual minorities, but do nothing for minorities as a whole. Liberals seem to focus more on helping minorities in general than individually.

Neither approach alone will eradicate racism. How can one eradicate racism if conservatives pretend it doesn't exist?

This is off the subject, but why are they referring to the Federalist Society as an "elite organization" when any old law student can join?

I gave you guys my personal 12 step program to enlightenment on this a couple of weeks ago.

See the new post on volokh today above about the Chairman of the Board of RWU using the N-word in a board meeting where they were talking about diversifying the board. He also says it is the first time he ever used it ("it slipped out") and blames "rap music". I have a bridge in Brooklyn for sale.

The Roberts formula seems to say really "let the government not do anything to address going forward the horrendous past and present of this country related to racial discrimination against blacks and then we can leave the free market of private racism to determine the outcomes."

Being called the N-word by a a state official or the head of a university (that I believes is private) is still being called the N-word. And we are in 2007.

The NAACP effort to bury the term sure did not last long. Back from the grave!

Roberts formula reminds me of when Scalia told me to get over slavery. I did not have the presence of mind to say, but I should have that I will get over slavery when you get over citing to slaveowners.

Best,
Ben

The line is, of course, pure sophistry. It purports to offer a solution to segregation -- "The way to stop discrimination on the basis of race is . . . ." -- but ignores the fact that school districts are concerned with de facto racial segregation. Removing the rhetoric, Roberts's response is that "[t]he way to stop [de facto racial segregation] is to stop [race-conscious integration programs]." Obviously that is not the case --and Roberts does not mean to suggest that it is.

I disagree for a number of reasons. First, and formost, there are many of us who do believe that racism still rears its ugly head because people, businesses, and governments are allowed to discriminate in favor of select minorities. Paraphrasing the sainted Dr. MLK, Jr., they are still being judged by the color of their skin.

Secondly, the majority pretty well demolished your "segregation" argument. You are (arguably intentionally) confusing two terms here, segregation and racial balancing. You apparently support racial balancing, but justify that by calling it desegregation. It isn't. The difference is in they why of where different people live. Segregation requires that they were forced to live somewhere, or prevented from living somewhere else. There was specifically no finding that that was happening in that case. People were living where they wanted to, but the school districts didn't like the resulting racial balance.

It was not de facto segregation. No matter how many times you call a racial imbalance that you don't approve of that, it doesn't make it so. It isn't.

The whole point of his turn of phrase is to obscure the distinction between de facto and de jure segregation -- and to disparage concerns about the former. I don't see why opponents affirmative action would want to sign on to that.

I would suggest just the opposite, that the only reason to call a racial balance that you don't like, "de facto segregation", is to piggyback onto civil rights remedies. But the difference between segregation and such a racial balance is the issue of free will. You have to answer the question of: why did the different groups of people end up living in different areas? And in these cases, there was no showing that there was any reason other than personal choice, which the school districts had taken upon themselves to override.

The Roberts formula seems to say really "let the government not do anything to address going forward the horrendous past and present of this country related to racial discrimination against blacks and then we can leave the free market of private racism to determine the outcomes."

I would rather suggest that he/they are saying that we are at a point where dwelling on past transgressions is counter productive.

Roberts formula reminds me of when Scalia told me to get over slavery. I did not have the presence of mind to say, but I should have that I will get over slavery when you get over citing to slaveowners.

Well, not a lot of precedent gets cited from back then, except our founding documents and the thinking behind them. Ok, maybe Marbury v. Madison. But little else. So, I read what you are saying there to suggest that as long as we cite the Constitution, and in particular, the Declaration of Independence (given its authorship), you won't get over slavery. I frankly think that these old documents have a pretty long life ahead of them still, and if I am right, I would suggest that that is a long time to hold a grudge.

Conservatives define racism at the individual level, as action based on race. If an individual, organization, or government makes a decision based on race, it is racist.

Liberals define racism at the group level. If an organization has too few of a minority, it is racist.

It is not a conflict over race, but a conflict over individual versus group rights. Conservatives focus on individual liberty, liberals focus on collective outcomes. If there are no black kids at college, conservatives do not think "The school is racist." Liberals see a college with no black kids, and kick out Asian kids to make room for rich black kids. Conservatives say, "How does that help the high school dropout in the ghetto?" Liberals score another victory for diversity.

I don't think liberals are racist, because they don't have racist intentions. They treat all humans as clay to be molded by the state.

I think it is more elites who treat people as clay. Open plants in places making people there happy to get employment, close plants in places wrecking people's lives. Remake the Middle East in our image, etc.
Best,
Ben

Thorley Winston:

"And people who support affirmative action today are just as bigoted as the people who supported Jim Crow 30-40 years ago no matter how much they like to pretend otherwise."

To be "just as bigoted" one would have to propose making whites chattel for a few years before returning to the no-AA, no-Jim Crow situation, or at least reparations.

Now, AA-supporters are somewhat bigoted, but they do offer a coherent answer (which may well be wrong) to the question of how to address what seems to be the effect of Jim Crow and other now-illegal laws. "No affirmative action" lacks that element.

bmullins hypothesized that "Lloyd Wright" was the architect Frank Lloyd Wright. Lloyd Wright, who was indeed an architect, was Frank Lloyd Wright's son.

A higher percentage of republican senators than democrat senators voted in favor of the CRA in 1964.

Agreed.

Affirmative action is a racist policy.

Opposing AA is a racist policy. There, do we all feel better now?

Redman,

When the policies were first enacted I thought AA for 20 years would be a good idea. A jump start.

It is now going on 40 years. Enough.

It's a silly and probably regrettable little sound-bite that doesn't make a great deal of sense, but I think the decision was a good one. Suppose we accept that racial balance, not in the sense of strict numerical balance but in the sense of limiting de facto segregation, is a compelling purpose. Was the Seattle plan even remotely close to being narrowly tailored towards achieving that end? In the first place, the plan works on the basis of a white/non-white binary, which means that, by Seattle's lights, there's something more integrated about a half white, half Hispanic school than a half Asian, half African-American school. In and of itself that could've been enough to sink the plan as far as tailoring's concerned. Secondly, they sought to keep each school within 10 percent, + -, of the demographic mix in Seattle (41% white, 59% non-white). You have to draw the line somewhere, of course, but what could possibly be the matter, by any standard of diversity or integration, with a school that's 52% white, 48% black? Yet such a school would be unbalanced under Seattle's scheme. If Seattle simply made a law saying that no school's student body shall be, say, 80 percent or more comprised of any one racial group, that might have passed muster because then they could legitimately say they made a law narrowly tailored to ensure that all their schools would be at least (to a significant extent) biracial. But they didn't do that; they didn't come even close. Secondly, how compelling a purpose is integration really in the absence of past discrimination? If a kid lives in a predominantly Korean part of town, I don't quite understand what the constitutionally compelling purpose is that demands that he be sent out to a distant school so that he might study amongst non-Korean students.

However, does anyone doubt the rigid interpretation of Brown embodied in Robert's quote is almost exclusively the province of conservative legal thinkers such as the Federalist Society

I think the vast majority of Americans took the message of the civil rights movement generally and Brown specifically to be that racial discrimination was wrong. Which is why anti-discrimination laws have obtained widespread support, while racial preferences have not.

I was referring to the Constitutional aspects of Brown, not the preferred public-policy (via majority rule). The notion that Brown stands for Constitutionally-mandated, rigid color-blindness is of course mostly a conservative idea in line with the Federalist Society.

But what would such an argument have to do with Parents Involved? The Seattle/Louisville plans had nothing to do with "fighting racial supremacy." They had to do with aesthetics of the class photographs.

Of course the desired end which is hoped to be achieved through desegregation is to foster equality of the races.

The civil rights act cloture vote was 44 Democrats and 27 Republicans voting for cloture with 23 Democrats and 6 opposed.

Jim Crow was imposed by overwhelmingly Democrat party politicians.

While the Repubs made presidential inroads during the late 60s, the state and local wins by the Repub party in the south happened after the last jim crow democrats retired. We still occasionally see "first Repub elected to {office} since reconstruction" news - the big wave was in the 80s and early 90s.