Posted by Orin Kerr:
Roberts, Blackmun, and the Rhetoric of Affirmative Action Cases:
http://volokh.com/archives/archive_2007_07_15-2007_07_21.shtml#1184675289
An [1]editorial in the New Republic suggests that the end of Chief
Justice Roberts' opinion in the recent Seattle school case -- that
"the way to stop discrimination on the basis of race is to stop
discriminating on the basis of race"-- is some kind of special message
passed among elite Federalist Society members. The editorial states:
Today, the view lives on in elite organizations like the Federalist
Society, with which Roberts has long been affiliated. Indeed, the
much-cited coda to Roberts's opinion--that "the way to stop
discrimination on the basis of race is to stop discriminating on
the basis of race"--is lifted almost verbatim from a 2005 dissent
by circuit court judge Carlos Bea, also a Federalist Society
booster, which itself recalls a slogan favored a decade ago by
former solicitor general Theodore Olson, another Federalista.
I realize the Vast-Right-Wing-Conspiracy shtick has a following in
some circles, so maybe the suggestion wasn't designed to be taken
seriously. But I was assuming Roberts' phrase was just a play on
Justice Blackmun famous line in his [2]Bakke opinion that "[i]n order
to get beyond racism, we must first take account of race." Maybe my
reaction is idiosyncratic, but I saw the line as a direct response to
Blackmun.
Here was the surrounding passage in Justice Blackmun's Bakke
opinion:
I suspect that it would be impossible to arrange an
affirmative-action program in a racially neutral way and have it
successful. To ask that this be so is to demand the impossible. In
order to get beyond racism, we must first take account of race.
There is no other way. And in order to treat some persons equally,
we must treat them differently.
Given Roberts' position, inverting Blackmun's phrase strikes me as a
pretty obvious rhetorical move. The power of Blackmun's phrase is that
it seems to state a contradiction, pushing the reader to appreciate
why the author sees the apparent contradiction as necessary. It takes
the form, "In order to do X, we need to do anti-X." Roberts responds
to Blackmun by taking out the contradiction. The new form becomes,
simply, "The way to do X is to do X." Obviously different people will
disagree on which side is right, but I'm puzzled by TNR's suggestion
that the rhetorical point somehow originated among Federalist Society
members.
A final thought: I vaguely remember reading that Blackmun probably
took the phrase from a magazine article on affirmative action
published shortly before Bakke. Does that ring a bell with any
readers? I might have seen that in Linda Greenhouse's Becoming Justice
Blackmun, but I don't have the book handy to check on it. (Hat tip:
[3]Howard)
References
1. http://www.tnr.com/doc.mhtml?i=20070723&s=editorial072307a
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=438&invol=265
3. http://howappealing.law.com/071707.html#026949
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