A hard but correct Supreme Court decision on Race


Racial discrimination and oppression have long been the evil shadow side of American liberty. Not only historically with slavery as it morphed into state-based, Jim Crow segregation, or with contemporary fears of devout Muslims and of too many immigrants coming from Mexico and Central America, thinking about people in terms of their race or ethnic origin is still, for many of us, as American as the 4th of July.

Opinion: A hard but correct Supreme Court decision on Race

So when should we be able to discriminate according to race?

A recent controversial opinion of a Supreme Court plurality answered this question in terms of basic constitutional law. The opinion against the use of race written by George W. Bush appointed Chief Justice John Roberts triggered fierce opposition.

Roberts reads our Constitution as holding that, basically, we can never discriminate according to race.

Justice Steven Breyer in dissent, echoed by many others, accused Roberts of “turning back the clock” on progress in race relations, of engineering a radical reversal of progressive trends in constitutional law, of even being, perhaps, a closet white racist or at least a cold-hearted bystander in our continuing quest for racial justice.

Breyer believes that we can discriminate according to race if our purpose in doing so is to be well-intentioned and remedial. For Breyer, if we use race to achieve positive social goals of racial diversity, in particular to implement a program of overcoming the injuries caused by slavery to African Americans, then we can be race conscious in our discriminations among citizens.

Justice Roberts’ opinion had the support of four justices. The dissent to that opinion written by former Harvard Law Professor Steven Breyer had the support of four justices. Justice Anthony Kennedy agreed with Roberts as to result but for his own reasons.

Roberts and Breyer disagree on more than the role of race under the Constitution. Each is animated by a different vision of social justice. They disagree on the fundamental point of who controls just outcomes?

The contrasting opinions authored by Roberts and Breyer reflect two very divergent visions of America. More deeply, these legal opinions articulate two sides of the cultural divide polarizing our people.

Roberts believes most in some cultural process driven by free-thinking individuals. For him, justice is whatever results from the process as long as the principle of due process before the law is upheld.

Breyer, to the contrary, believes that government has an intentional role in achieving conditions of justice that we first conceive and then legislate.

Roberts is libertarian; Breyer, the more progressive of the two, is actually more authoritarian in his jurisprudence.

Roberts runs up against the inconvenient fact that sometimes bad people want to do bad things. Breyer must face what for him is the inconvenient reality that government can abuse its powers and that regulation brings with it unintended consequences.

Breyer fears that progress has stalled in having black and white Americans live cheek by jowl with one another to eliminate infamous racial segregation and promote tolerance and cross-racial respect and understanding. Breyer believes that racially divided residential housing patterns are wrong and hold us back from achieving a color-blind society with tolerance for all individuals. Thus, Breyer would let local school systems assign students to schools based on their race alone in order to have mixed race student bodies. Breyer wants to organize a proper social outcome that Americans would experience.

Roberts, to the contrary, believes that such use of race, though very well-intentioned, is contrary to the Constitution and American visions of social justice. Roberts holds that, under the Constitution, America is to be color and class blind among individuals. Race is not to drive opportunities and outcomes for Americans; we are to be equal under the law, each one to the other without regard for race, religion and all other suspect categories.

For Roberts our rights come to us as free individual citizens and only as such. There are to be no double-standards that shift the scales of justice one way or the other for only some of us. Race by itself, without more, can’t be used either to hold each one of us back or to move each of us forward. This sense of justice puts the individual first and foremost.

When I read the conflicting opinions written by Roberts and Breyer in the recent decision in the case of race-based student assignment programs in Seattle and Louisville, I concluded that, like it or not, Roberts, not Breyer, had the better legal argument even though Steve Breyer was a teacher of mine in law school where I admired his intellect and his decency and concern for our country.

Roberts’ opinion, I know, is toxic to many very fine and right-minded Americans. But even given all their good intentions, I would suggest that Roberts has the better point of view for the long run. He certainly has the weight of law on his side.

The famous desegregation case that set in motion the Civil Rights Movement was Brown v. Board of Education. Brown held, simply, that race was not a permissible basis for decisions made by local governments. African American students could not be told where to go to school based on their race. They had the same rights as individual Americans as did all other American citizens.

Brown overruled Plessy v. Ferguson which had upheld race based decisions (racist and anti-African American at the time) made by local governments setting in place systems of legal segregation between Blacks and Whites in the South after the Civil War.

Plessy itself had been a reversal of then current law; the case permitted Jim Crow racial segregation to go forward in the South after the defeat of legal slavery in the Civil War and the passage of the 13th, 14th and 15th amendments to the Constitution.

When Plessy affirmed the use of race-based decision-making, it re-legalized the racism of Dred Scott. In Dred Scott, Chief Justice Taney ruled that members of the ”negro African race” had “no rights which the white man was bound to respect”.

Taney’s racism, put into law via the Dred Scott decision, was inconsistent with the underlying values of the American republic, but it took a civil war and three amendments to the Constitution to put that racist tradition completely out of legal bounds.

Plessy, as I noted, brought some of that southern inequality between races back into force. But Plessy too would go the way of Dred Scott thanks to Brown v. Board in 1954 and the Civil Rights Movement of the early 1960’s.

After Brown and after the Civil Rights Movement broke the back of southern racial segregation, the issue arose of how to undo the invidious effects of segregation. Could race be used to achieve integrated schools? The Supreme Court then made a narrow exception and permitted use of race in that context under strict judicial scrutiny and only in special circumstances.

Subsequent Supreme Court cases have consistently held that the use of race in public policy is an exception to the rule of individual equality before the law, to be disdainfully accepted only in limited circumstances. For example, in 2003 the Court in discussing the use of race by the University of Michigan articulated a standard that such affirmative use of race should be phased out entirely in “25 years” or by 2028.

The recent Roberts opinion, however, is powerfully significant because it refutes a core attitude coming out of the late 1960s. Roberts’ rejection of a widely-held cultural stance makes his opinion divisive to be sure, but it does not mean that he is wrong on the law.

Roberts is asking us to rethink the legitimacy of identity based preferences and interpersonal claims on others. This is a tough one to think about, for group-based identities are important to most of us, but so is our individual autonomy and uniqueness that separate us from family and other descent groups.

I lean towards the perspective that progressives and liberals of every stripe (including 19th century liberals in the mold of Adam Smith and John Stuart Mill) should side with equality of individuals under the law. Racial thinking of any form that imposes categories and consequences on the individual should be greeted with a presumption of political incorrectness.

Somehow, I suppose, we need to be somewhat race sensitive but without becoming race determinative – somewhere where we can stand with Roberts on the law and with Breyer on what cultural justice would like to applaud.