I’ve recently developed the feeling that I was in limited company, at least among the more liberal-minded, in not being shocked in the least by the Supreme Court’s recent decision in the school desegregation case. I’ve spent the past four years studying legal conservatism—the Federalist Society in particular—from a rhetorical as well as a legal perspective. Thus my focus was as much on the ways conservatives have formulated and articulated their arguments as it has been on the underlying substantive legal (and social) questions. Rhetoric in this sense is not “mere”; it shapes the public discourse and can be politically determinative. Nowhere is this observation more clear than in the area of race. Conservatives have not only captured a 5-4 court. They have captured the discourse, and with it the public meaning of “equality.”
It is absolutely vital to understand that for fifty years “movement conservatives” have seen a wide array of social and political issues, including race and Affirmative Action, as part of a much broader struggle between two Enlightenment ideals: Liberté and Egalité. For William F. Buckley Jr. and the Cold War conservatives the contrast was apposite to the struggle against what they perceived to be an equality-obsessed Communist Menace. The socialist/communist trope was vital to the glue that held the early conservative coalition together. Social conservatives resented Godless Communism. Economic conservatives resented impositions on “liberty” by government regulation—a project carried on by self-described “classical liberals” such as Chicago law professor Richard Epstein of Takings fame.
To understand how American conservatives have talked about equality in the context of civil rights we need to understand the meaning of equality in the conservative mind. Hence we must go all the way back to Edmund Burke and his reaction to the revolution in France. “Equality is the product of art, not of nature,” is how conservative intellectual historian Russell Kirk interpreted Burke’s key insight. “If social leveling is carried so far as to obliterate order and class,” he wrote in The Conservative Mind (1953), “art will have been employed to deface God’s design.” Particularly in its socialist guise, state-enforced egalitarianism is “the death of progress,” stifling innovation, competition, and creativity. It is destructive of civilization, of the heritage and traditions which hold society together. As the Southern rhetorical critic Richard Weaver wrote, “Where equality obtains, no one knows where he belongs.” In a recent law review article on American Exceptionalism, Federalist Society co-founder professor Steven Calabresi, of Northwestern Law, writes that the “golden door” of Ellis Island is home to a statue of liberty, “and not a statue of ‘equality’ or ‘fraternity.’ That is,” he writes, “after all, what this country stands for.”
Conservatives moved to reshape the legal discourse of equality during the Nixon presidency. In particular, Supreme Court nominee William Rehnquist, who made clear he accepted Brown, was thereby largely inoculated against racially tinged accusations deriving from a notorious memorandum he wrote while clerking for Justice Robert Jackson. Support for Brown—with its vague, though inspirational language and ambiguous holding—became a trump-card defense and an opportunity for conservatives to redefine its meaning. And in doing so they managed a return, of sorts, to the bad old days of Plessy v. Ferguson.
In Washington v. Davis (1976) the Nixon Court essentially read the first Justice Harlan’s dissent and its ideal of “colorblindness” into the common law, creating what liberal Yale Law School professor Reva Siegel has described as a tense relationship between the core principles of anticlassification and antisubordination. “Talking about the wrongs of classification was not merely a cooler way of justifying Brown, it was simultaneously an effective way of limiting Brown,” she concludes. As a frustrated Justice William Brennan wrote in his dissent in University of California Regents v. Bakke (1978), “[C]laims that law must be ‘color-blind’ or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality.”
Conservatives continued to shape the debate over “equality” and racial issues throughout the 1970s. As George W. Bush’s former speechwriter David Frum wrote in a fascinating social history of that crucial decade, “Busing to achieve racial balance was reduced to busing, a ‘revolution imposed from above.’” In his comprehensive study of the Reagan administration’s civil rights policies, history professor Raymond Wolters, of the University of Delaware, astutely observes that Reagan “knew that the yellow school bus had become a symbol of intrusive social engineering and sensed that, for many people, the buses might have been emblazoned with words like liberal or Democrat.” By the end of the ’70s, statistics do show that white public opinion had turned decisively against “busing.” Busing and Affirmative Action were rearticulated as “quotas” and the game was up. Conservatives captured the language; the eventual outcome of this sea change was realized last week. There was nothing surprising about it.
As American University law professor Jamin Raskin has written, “conservatives gathered excitedly around the mantra of ‘colorblindness,’ a magical turn of phrase that justified not only the dismantling of affirmative action programs . . . but judicial disengagement from the project of active school desegregation.” Another magical turn of phrase comes, of course, from Martin Luther King Jr.’s “I Have a Dream” speech. King’s vision of an America where people are not “judged by the color of their skin but by the content of their character” has been smoothly absorbed into the conservative rhetoric of colorblindness.
“Well, Dr. King, we’re not going to make it with your children, maybe your grandchildren maybe your great-grandchildren,” commentator and former education secretary William Bennett said at a 1993 Heritage Foundation panel discussion on “The Conservative Virtues of Dr. Martin Luther King.” “We are further away from being colorblind today than we were when Dr. King [gave his speech], because race-norming, counting by race, reverse discrimination, racial identification, talking about oneself and one identity in terms of race is much more popular and much more a part of the intellectual and political mainstream than it ever was,” Bennett said.
Brennan’s Bakke dissent was echoed last week by Justice Breyer. Segregation, Breyer wrote, “perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination.” The “promise” of Brown, Breyer wrote, was to undo that system. The problem is that not everyone understands the “promise” in the same way—the rhetorical work by conservatives has made it so: They articulated Brown into their existing narrative of the struggle between individual liberty and forced socialized norms. Racist segregation was an example of the latter, and as such Brown was right to attack it. But social re-organization through Affirmative Action and busing schemes were of a wholly different cast. Thus Roberts wrote:
Before Brown, schoolchildren were told where they could and could not go to school based on color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.
Motive is thus written out of the law—a crucial legacy of the conservative legal movement’s increased influence.
The broad philosophical question of equality remains the linchpin. In this way I agree with Maryland law professor Deborah Hellman, guest-blogging at Balkinization: “The more sensible reading of Justice Roberts’ claim is as a moral claim: the way to stop wrongful discrimination on the basis of race is to stop drawing distinctions on the basis of race. As such, this claim rests on the dubious proposition that any instance of drawing distinctions on the basis of race is wrongful.”
But—aha! “Dubious” or not, this claim is central to conservatives’ political and legal project. Liberals, including Breyer, have not yet risen to the challenge of vigorously answering conservatives’ moral claims—claims made legally viable, in this case, by Brown’s vagueness and convoluted progeny up to and including the Michigan cases decided by O’Connor’s vote a few years ago. Rather than chastising Roberts and Alito for “not following precedent” (which garners a collective yawn from most of the non-lawyer public), liberals must take up the challenge of reclaiming Brown and the popular understanding of equality.
In a way, we have seen a return to Plessy—not in some cheap racist sense, but in terms of the colorblind standard of Harlan’s dissent and the “self-inflicted psychology” rationale nested deep in the majority opinion. In 1896 the Court held that any harms produced by segregation were the result of a willful self-perception, a “construction” that “the colored race chooses.” This is the second half of the modern conservative view, holding that the civil rights era is over; the first being the foundational conflict between liberty and equality. The perpetuation of civil rights litigation and political contestation is at best misguided, at worst a fraud. “Memories of aggressive discrimination and oppression do not fade so quickly,” writes Robert Bork. “But in another way, the intensely unsatisfactory state of race relations is a mystery. The opportunities for blacks to advance in the United States have never been greater.”
And what is to blame for this mysterious disquiet, this continued agitation? Liberalism, of course, and its faith in the possibility of absolute equality. Charles Murray, co-author of the much-maligned Bell Curve, put it this way in a speech to the American Enterprise Institute in 1994: “That people are unequal is not in doubt, now as ever before . . . but we have been deeply indoctrinated throughout the twentieth century that they shouldn’t be.” Ultimately, ideology is to blame, and equality is just one more ideological formation. “The perversions of the egalitarian ideal.” Murray reminds his audience, “began with the French Revolution.”
Movement conservatives have taken the long view, both intellectually and legally. It’s high time liberals came to grips with this fact and developed rhetorical, political, and legal strategies to match. Thurgood Marshall and the NAACP team did precisely this in the lead-up to Brown, in conjunction with Dr. King and the leaders of the broader civil rights social movement. They've had no modern successors.