Thursday, October 17, 2013

The Racial Innocence of John Roberts

Jack Turner

Jack Turner is associate professor of political science at the University of Washington. He is the author of Awakening to Race: Individualism and Social Consciousness in America (University of Chicago Press, 2012).

Chief Justice Roberts is on a mission to dismantle public policies that correct the aftereffects of de jure white supremacy. Civil rights lawyer William Taylor warned us of Roberts’ softness on white power on the eve of his confirmation: “The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages.” Taylor chronicled Roberts’ early career in the Reagan administration where he worked energetically to strip federal courts of the power to desegregate schools through busing; Roberts also worked energetically to block the 1982 re-authorization of the Voting Rights Act and to deny public education to children of undocumented immigrants. During the confirmation battle, Roberts maintained that he was simply following the orders of superiors. But through an analysis of legal memoranda from the period, Taylor demonstrates that Roberts took positions more hostile to the rights of African Americans and Latinos than those of his superiors.

Taylor’s worries about the implications of a Roberts Court for racial justice have been vindicated. In Parents Involved v. Seattle (2007), Roberts led the Court’s majority in striking down the use of a “racial tiebreaker” in the allocation of spots in oversubscribed public schools. In Ricci v. DeStefano (2009), he joined the majority in upholding the validity of a civil service exam that had a demonstrable racial bias in favor of whites. In Shelby County v. Holder (2013), he led the Court in striking down Section 4 of the Voting Rights Act (VRA), rendering the Justice Department powerless to prevent states and localities with a history of racial discrimination from infringing citizens’ right to vote. What interests me is not just the pattern of Roberts’ race jurisprudence. It points clearly in the direction of a colorblind constitutionalism that protects white advantage. What most interests me is Roberts’ self-assured style of opposing race consciousness. That style bespeaks both a racial innocence born of privilege and an investment in an American “meritocracy” that just so happens to tilt in favor of whites. By analyzing this self-assured style, we get a window into the mindset of those who work to preserve racial stratification while congratulating themselves on rigorous adherence to the principles of liberal democracy.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts propounded in Parents Involved. Though the formulation is forceful, the logic is old. Since the 1960s, conservatives have framed race-conscious remedies for racial injustice as morally equivalent to racial slavery and segregation. The logic turns on the idea that racial discrimination—in the weak sense of distinguishing racial groups—is morally repugnant in its own right and the first step down the slippery slope of racial oppression. The logic is appealing because it exploits a partial truth: reflexive racial categorization of people is a crude and often degrading form of social interpretation, and all systems of racial oppression require drawing distinctions among racial groups. Proponents of colorblindness thus portray themselves as heroic defenders of racial justice who tough-mindedly attack racism at its root. The logic’s weakness lies in its obfuscation of the fact that we live in historical time, and that centuries-old systems of oppression leave aftereffects even after those systems have been formally abolished. Refusing to take notice of race becomes a principled basis for refusing to track how the legacies of slavery and Jim Crow differentially affect the lives of citizens, conferring advantage on some and disadvantage on others.

This blindness to historically cumulative racial power could be an innocent intellectual mistake and therefore susceptible to correction. Or it could be the whole point: colorblindness leaves the material inequalities produced by slavery and Jim Crow intact, and makes them the presumably just baseline of our political life. The fact that African Americans make 60 percent the income of white Americans and possess just 10 percent of the wealth becomes an unfortunate phenomenon whose origins are mysterious—whose causes may even be “cultural”—instead of a predictable byproduct of longstanding failures to provide equal education to black citizens, to prevent discrimination in the workplace, and to ensure equal opportunities to own homes and accumulate wealth. (If Roberts is not convinced that these conditions are traceable to Jim Crow, he should do his homework—starting with Melvin Oliver and Thomas Shapiro’s Black Wealth / White Wealth: A New Perspective on Racial Inequality [rev. ed. 2006]).

Source: Edward N. Wolff, "Recent Trends in Household Wealth in the United States: Rising Debt and the Middle-Class Squeeze—an Update to 2007," Levy Economics Institute of Bard College Working Paper No. 589, March 2010, Tables 10 and 11. - See more at:
This strategy goes hand in hand with a triumphalist narrative of racial progress that holds that America was born in racial sin but redeemed itself through the Civil War and Civil Rights Movement, culminating in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which purged the sins decisively (excepting, of course, some final racist holdouts who can be dismissed as atypical). Roberts’ opinion in Shelby County v. Holder expresses this triumphalist narrative: “Our country has changed,” rendering the VRA’s current coverage formula an unjust imposition on states’ “equal sovereignty.” Roberts ignores empirical evidence vindicating the coverage formula. More striking is his failure to acknowledge the force of the VRA’s “bailout provision,” which enables any covered jurisdiction to relieve itself of Justice Department supervision by maintaining a clean record on voting rights for ten straight years, and which therefore addresses his concern about unwarranted federal impositions.

Roberts is exasperated by the fact that the preponderant number of covered states are states of the Old Confederacy; his pique seems directed at the very idea that the racial geography of slavery and Jim Crow is still morally significant. Acknowledging that significance means entertaining the thought that slavery and Jim Crow have afterlives that implicate whites in systems of racial advantage—systems that undermine white claims to merit and self-reliance. Could it be that Roberts’ anxiety over the idea that the racial past is “not even past” is deeply personal—an anxiety rooted in his own investment in his personal narrative of meritocratic success? If he is magnanimous enough to acknowledge that he benefitted from his whiteness somewhere along the way from private boarding school to Harvard College to Harvard Law to Hogan & Hartson to the Supreme Court, must he still cling to the idea that the system is basically just—that even when people like him benefit from whiteness, the magnitude of their merit eclipses all the little ways social systems dole out injustice? If the system is basically just, is not the primary task for the man of clarity and principle to preserve that system, and purge it of so-called correctives that indict both it and its beneficiaries? Must not the man of clarity and principle also insist that the situation of blacks and whites in America is morally symmetrical, notwithstanding any remaining inequalities?

Roberts’ acceptance of the idea that the situation of blacks and whites is morally symmetrical underwrites his hostility to race-conscious public policy. Relinquishing that idea would mean confronting his own placement at the pinnacle of American racial hierarchy. The notion that the playing field—even if occasionally rough and muddy—is basically level, and that the winners on that field have real reason to congratulate themselves, may be the primary source of Roberts’ hostility toward race-conscious public policy. For in attributing injustice to the system, such policy questions the merit of the winners. Losing his identity as a winner is too much for Roberts to tolerate.


1 comment:

  1. I am immensely inspired and encouraged by Professor Turner's words here. This is of especially great interest to me because I am studying the "Parents Involved" case right now.

    While I agree with Professor Turner's suggestions about Roberts' motives (though Turner uses the word "may" quite often), I nonetheless think his analysis misses the mark. For Roberts and others who impede remedying the evil effects of Jim Crow have a very strong defense besides their individual bias (or possible bias, we should say). Their defense is their method of constitutional interpretation. As I understand "Parents Involved" and other similar cases, these impeders do not want to read any context into the explicit language of the Constitution -- and rightly so, I believe. As Professor Turner writes, Roberts' colorblind logic is invalid in its "obfuscation of the fact that we live in historical time." But history is not a given when applying the Constitution. It is relevant in some cases, but I don't believe every law can be interpreted with some type of history or context in mind in its creation. I believe this is so for the reasons that (1) it is simply impossible to find context and intention for every law, especially older ones that seem to be highly contradictory to other laws of the same era (i.e., the same Congress that passed the Equal Protection Clause also segregated Washington D.C. schools -- what, then, is the context and intent of the EPC?); and (2) such "historical" readings can be used to greatly distort the law into creating further injustice. Judges should not have that type of power, I believe. And so for this reason, as much as I disagree with Roberts' decisions, I concede that they have some validity grounded in their constitutional interpretation.