[S]ome limited victories against quotas . . . show vestiges of a constitutional order that possibly could be revived. The Hopwood decision in Texas, for example, and California’s Proposition 209 are unequivocal affirmations of equality before the law.
In 1995, he likewise wrote in the Washington Times (about the Adarand Constructors v. Pena case and the Missouri v. Jenkins case) that “Those who hoped that the conservative majority on the U.S. Supreme Court would use two egregious cases to cut the cancer of racial quotas out of our society and reclaim the power of the purse for elected representatives can only be disappointed at the rulings handed down Monday”; that seems to be at least in some measure an endorsement of such hopes for a Supreme Court rejection of race preferences. In 1996, he seemed to praise the Fifth Circuit’s Hopwood decision, which rejected race preferences in university admissions: “For the first time since the hated racial quotas were foisted on an unsuspecting country by unconstitutional and extralegal means, a federal court has ruled that racial quotas in university admissions are unconstitutional. . . . Score one for Texas Law School professor Lino Graglia, who has long warned his colleagues against their unconstitutional practices. . . .” So far, so good — those who read the blog know that I strongly oppose race-based preference programs, so I’m surely not criticizing Mr. Roberts on that score.
Now, check out his recent column which condemns in harsh terms Brown v. Board of Ed., calling it “An Infamous Ruling”:
Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values. . . .
But Brown . . . ushered in kritarchy — government by judges . . . .
Even worse, in place of good will and persuasion Brown substituted coercion as the basis for reform. May 17, 1954, is a day of infamy, because it is the day Marxism triumphed over liberalism in America. . . .
Although decided in the name of equality, Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake, in the end invading even freedom of conscience of the American people.
Brown’s true legacy is rule by judges, the destruction of equality before the law, the replacement of persuasion with coercion, the end of freedom of conscience, and the rise of insatiable racial grievances. Osama bin Laden, no doubt, is celebrating.
I certainly acknowledge that Brown v. Board of Education is open to criticism, either on pragmatic or originalist grounds. (I don’t want to get into the very interesting originalist debate on that here, but suffice it to say that there’s a plausible argument that “equal protection of the laws” was originally understood as not applying to political rights, such as the vote, or to participation in government benefit programs, such as employment, contracting, education, and the like.)
But how can it be that courts’ striking down “racial quotas and preferences” that favor nonwhites is good, while courts’ striking down racial quotas and preferences — a mild term for what Jim Crow involved — that favor whites is somehow “infamous”? Yes, I can imagine some way of reconciling disapproval of Brown and approval of Hopwood, for instance on the theory that the courts should never have gone down the path of forcing nondiscrimination on government actors who opposed it, but that once they did, this principle should be applied evenhandedly. But read those columns and see if their substance and their tone can really bear that interpretation.
Oh, and as to Brown‘s “usher[ing] in inequality before the law with the racial quotas and preferences that followed in its wake,” I understand the verb “usher in” to mean “To precede and introduce; inaugurate”. Wasn’t there just a tiny smidgen of “inequality before the law” based on race, and “racial quotas and preferences,” even before Brown? Even if you think Brown was flawed in some ways, wouldn’t it be more accurate to say that Brown helped substantially reduce inequality before the law and government-imposed racial quotas and preferences, though it regrettably did not eliminate them?
Finally, I leave it to the reader to evaluate the column’s concluding line, which is that “Osama bin Laden, no doubt, is celebrating.”