10/22/13 9:40 AMThe Contemporary Condition: The Racial Innocence of John Roberts

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THECONTEMPORARYCONDITION

Thursday, October 17, 2013

The Racial Innocence of John Roberts

Jack Turner

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

Chief Justice Roberts is on a mission todismantle public policies that correct the

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10/22/13 9:40 AMThe Contemporary Condition: The Racial Innocence of John Roberts

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aftereffects of de jure white supremacy. Civil rights lawyer William Taylorwarned us of Roberts’ softness on white power on the eve of hisconfirmation: “The most intriguing question about John Roberts is whatled him as a young person whose success in life was virtually assured byfamily wealth and academic achievement to enlist in a political campaigndesigned to deny opportunities for success to those who lacked hisadvantages.” Taylor chronicled Roberts’ early career in the Reaganadministration where he worked energetically to strip federal courts of thepower to desegregate schools through busing; Roberts also workedenergetically to block the 1982 re-authorization of the Voting Rights Actand to deny public education to children of undocumented immigrants.During the confirmation battle, Roberts maintained that he was simplyfollowing the orders of superiors. But through an analysis of legalmemoranda from the period, Taylor demonstrates that Roberts tookpositions more hostile to the rights of African Americans and Latinos thanthose of his superiors.

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10/22/13 9:40 AMThe Contemporary Condition: The Racial Innocence of John Roberts

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10/22/13 9:40 AMThe Contemporary Condition: The Racial Innocence of John Roberts

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

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“The way to stop discrimination on the basis of race is to stopdiscriminating on the basis of race,” Roberts propounded in ParentsInvolved. Though the formulation is forceful, the logic is old. Since the1960s, conservatives have framed race-conscious remedies for racialinjustice as morally equivalent to racial slavery and segregation. The logicturns on the idea that racial discrimination—in the weak sense of

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distinguishing racial groups—is morally repugnant in its own right andthe first step down the slippery slope of racial oppression. The logic isappealing because it exploits a partial truth: reflexive racial categorizationof people is a crude and often degrading form of social interpretation, andall systems of racial oppression require drawing distinctions among racialgroups. Proponents of colorblindness thus portray themselves as heroicdefenders 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 inhistorical time, and that centuries-old systems of oppression leaveaftereffects even after those systems have been formally abolished.Refusing to take notice of race becomes a principled basis for refusing totrack how the legacies of slavery and Jim Crow differentially affect thelives of citizens, conferring advantage on some and disadvantage onothers.

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This blindness to historically cumulative racial power could be aninnocent intellectual mistake and therefore susceptible to correction. Or itcould be the whole point: colorblindness leaves the material inequalitiesproduced by slavery and Jim Crow intact, and makes them thepresumably just baseline of our political life. The fact that AfricanAmericans make 60 percent the income of white Americans and possessjust 10 percent of the wealth becomes an unfortunate phenomenon whoseorigins are mysterious—whose causes may even be “cultural”—instead of a

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predictable byproduct of longstanding failures to provide equal educationto black citizens, to prevent discrimination in the workplace, and toensure equal opportunities to own homes and accumulate wealth. (IfRoberts is not convinced that these conditions are traceable to Jim Crow,he should do his homework—starting with Melvin Oliver and ThomasShapiro’s Black Wealth / White Wealth: A New Perspective on RacialInequality [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:

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http://inequality.org/wealth-inequality/#sthash.M9CxHxJm.dpuf

This strategy goes hand in hand with a triumphalist narrative of racialprogress that holds that America was born in racial sin but redeemeditself through the Civil War and Civil Rights Movement, culminating inthe Civil Rights Act of 1964 and the Voting Rights Act of 1965, whichpurged the sins decisively (excepting, of course, some final racist holdoutswho 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 onstates’ “equal sovereignty.” Roberts ignores empirical evidencevindicating the coverage formula. More striking is his failure toacknowledge the force of the VRA’s “bailout provision,” which enables anycovered jurisdiction to relieve itself of Justice Department supervision bymaintaining a clean record on voting rights for ten straight years, andwhich therefore addresses his concern about unwarranted federalimpositions.

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Roberts is exasperated by the fact that the preponderant number ofcovered states are states of the Old Confederacy; his pique seems directedat the very idea that the racial geography of slavery and Jim Crow is stillmorally significant. Acknowledging that significance means entertainingthe thought that slavery and Jim Crow have afterlives that implicatewhites in systems of racial advantage—systems that undermine white

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claims to merit and self-reliance. Could it be that Roberts’ anxiety over theidea that the racial past is “not even past” is deeply personal—an anxietyrooted in his own investment in his personal narrative of meritocraticsuccess? If he is magnanimous enough to acknowledge that he benefittedfrom his whiteness somewhere along the way from private boardingschool to Harvard College to Harvard Law to Hogan & Hartson to theSupreme Court, must he still cling to the idea that the system is basicallyjust—that even when people like him benefit from whiteness, themagnitude of their merit eclipses all the little ways social systems dole outinjustice? If the system is basically just, is not the primary task for theman of clarity and principle to preserve that system, and purge it of so-called correctives that indict both it and its beneficiaries? Must not theman of clarity and principle also insist that the situation of blacks andwhites in America is morally symmetrical, notwithstanding any remaininginequalities?

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Roberts’ acceptance of the idea that the situation of blacks and whites ismorally symmetrical underwrites his hostility to race-conscious publicpolicy. Relinquishing that idea would mean confronting his ownplacement at the pinnacle of American racial hierarchy. The notion thatthe playing field—even if occasionally rough and muddy—is basicallylevel, and that the winners on that field have real reason to congratulate

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themselves, may be the primary source of Roberts’ hostility toward race-conscious public policy. For in attributing injustice to the system, suchpolicy questions the merit of the winners. Losing his identity as a winneris too much for Roberts to tolerate.

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Labels: Democracy, Jack Turner, Minoritizations, Race, Supreme Court

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