By Robert Silvey
Any discussion of race in America must begin with the fact that for 388 years African Americans have been victimized, and for most of that time they were treated as chattel property, no better than domestic animals. They were enslaved from 1619 until 1865, and they were classified as slaves solely according to a binary conception of race. For most of the next 100 years, they were discriminated against in nearly every area of their lives, solely according to a binary conception of race. And even since the civil rights triumphs of the 1950s and 1960s, they have continued to suffer unequal treatment, solely according to a binary conception of race.
Now Chief Justice John Roberts, in a Supreme Court decision that effectively overturns one of those triumphs—the 1954 antisegregation case Brown v. Board of Education—has the temerity to write, “Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court’s precedents and the Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it [italics added].” In fact, this decision ignores real precedents (whatever Roberts may have told Congress about stare decisis), and it turns on its head the nation’s history of using racial considerations to improve the education of black children.
Apparently, Roberts believes that classifying African Americans—to their detriment—according to a binary conception of race is acceptable when it occurs naturally, as the result of white racism, but that any such classification used to repair the ravages of nearly four centuries of discrimination by invoking the legal system of the US government—to their advantage—is “an extreme approach.” His hypocrisy is breathtaking.
As is his racism. Of course, Roberts and fellow radicals Scalia, Thomas, and Alito avoid overt racism. They pretend that their decision will stop racial discrimination—and it might do so if it were dealing with the history of two groups of people both of whom immigrated freely and competed with each other from an equal starting point. In the real world, given the real history of this country, the decision instead protects and institutionalizes racial discrimination.
And in an Orwellian turn, Roberts buttresses his racist arguments by citing the very documents that helped African Americans to achieve some of the rights they have. The Fourteenth Amendment of 1868 granted citizenship to former slaves and listed their legal rights, including the sweeping prohibition that “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” Roberts uses this Equal Protection Clause to mean, perversely, that in effect the historical advantages of European Americans cannot be legally questioned, an interpretation that would make no sense to the Abolitionists who drafted it .
Similarly, Roberts twists the words of the Brown opinion, which granted the opportunities of a better education to African-American children, in order to snatch it away. The unanimous opinion begins,”Racial discrimination in public education is unconstitutional.” In the context of that case, and of the history of race relations, the phrase “racial discrimination” refers clearly to anti-black discrimination, and there is only one way to interpret that sentence: “Do not discriminate against blacks.” Roberts imagines, in his ahistorical way, that Brown forbids integration, that he can today decree an egalitarian society by freezing in place the inequality bequeathed to us. He cannot. He merely ensures continuing inequality.
Roberts cloaks his racism in rationalization and legal obfuscation. To understand the real subtext of his opinion, it may be useful to revisit the 1963 inaugural address of that old demagogue George Wallace when he was sworn in as governor of Alabama. Wallace said what he meant:
Today I have stood, where once Jefferson Davis stood, and took an oath to my people. It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and time again through history. Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say, “Segregation today, segregation tomorrow, segregation forever!”
That is precisely what John Roberts means. It is precisely the effect of his hypocritical ruling. The crushing legacy of slavery is passed on to another generation, and we are all its victims.
Categories: Race/Gender
Progressive Culture | Scholars & Rogues 
An interesting read and I certainly do not hold Chief Justice John Roberts in such low esteem.
You do this conservative male a disservice and to state so hopeless a view that he is now responsible for handing the legacy of slavery to future generations is very extreme. Quite some rock to throw at him. At least Roger Clegg has come out with some encouraging views.
I *heart* people such as:
http://www.bbc.co.uk/pressoffice/pressreleases/stories/2005/03_march/07/phillips.shtml
..and others of his ilk both here in the UK and abroad who are fighting for black people to be seen as individuals and not as continuing victims of the wrongs of the past.
How black is black? My nephews are not 100% ‘white’ (stupid word) by blood but you cannot interpret or apply prejudices to them by just looking at them….
Roberts and Alito have singlehandedly undone decades of precedent and common-sense law just to serve their narrow, ultraconservative agenda. It astonishes me to think the Senators confirming them actually BELIEVED they would adhere to the rule of law and put the evidence before their biases.
Those two sneering, smirking bastards are Bush and Rove’s ultimate triumph over progressive politics–and long after Bush is gone, we’ll be dealing with the repercussions of their soft bigotry.
I am not a liberal.
http://www.timesonline.co.uk/tol/news/uk/article671543.ece?token=null&offset=0
“On the other side, Justice Clarence Thomas, the court’s only black member, wrote a separate opinion endorsing the ruling and taking issue with the dissenters’ view of the Brown case.
“What was wrong in 1954 cannot be right today,” he said. “The plans before us base school assignment decisions on students’ race. Because ‘our Constitution is colorblind and neither knows nor tolerates classes among citizens,’ such race-based decision-making is unconstitutional.”
You have to love Judge Tom for sheer ironic lack of self-awareness. Where would he be today without the opportunities that Brown set in motion? Pumping gas?
Robert,
Thanks for this – you beat me to it, but I forgive you that because you’ve done such a brilliant job deconstructing Roberts and his racist agenda. He is an evil man – coupled with actions such as the cases Gonzales’ Justice Dept. is choosing to prosecute (see my post on the Jena 6), we’re seeing the Republican rollback agenda envisioned by Reagan being enacted by the high court. One can only hope that the Congress can get its act together and begin to take back law making from the Supreme Court to stop this – not just racist – but class war agenda the neocons have.
I don’t believe for one damned second that the point here is to treat people of color as “individuals,” Elaine. It doesn’t matter whether one is progressive or conservative, regressive decisions that reduce opportunity for better education and better lives for a historically disadvantaged class of people are NOT the American way. This is supposed to be the “land of opportunity” and by god, it should be that. This decision effectively denies that opportunity to many, many citizens – anytime that’s done, that’s another step toward America becoming a two tier place full of haves and have-nots – with the have-nots effectively barred from ever attainng have status.
“Justice Anthony M. Kennedy, also in the majority, agreed that the school districts went too far in their racial policies but stressed that race still can be taken into account in other cases.”
Jim:
You do not correct the evils of the past by bussing white kids across the state to fill biased agendas that even Roberts’ opposition acknowledges has gone too far…(see quote above).
When my Grandchildren are born in the land of the free – I hope they are just that “free” – whatever colour they happen to be.
Elaine, you’re buying GOP propaganda on this. Take a closer look at what the policies in Seattle and Louisville actually DID. Race was the last criteria and its use was qualified as hell even then. Basically the policies asserted race as the mechanism of last resort over a coin toss – this wasn’t about evil forced busing at gunpoint across the wilderness as some would have you believe.
Then Jim: “…that
Well, Sam, with the Supreme Court codifying practices that bar people from opportunity, we’re sanctifying (to use a good Southern word) this very system. Hell, what’s next? Roberts goes back to Plessy v. Ferguson and says that the Court made the “right’ decision there?
Don’t laugh too hard….
Elaine, Sam’s right – busing has been thoroughly disenfranchised as a methodology. What this decision does is make sure wealthy white suburban schools can practice discrimination at their ease. So that none of the “wrong” people get access to the better teachers, facilities, and equipment.
Don’t buy the Republican claims – there’s been no significant busing for racial balance in schools in the US since the 1970’s.
Sam: I’ll do some more digging. Thanks, as ever.
Nothing like getting a free education. 🙂
http://news.bbc.co.uk/1/hi/world/americas/4698685.stm
Everyone is entitled to their opinion, but what this precedent is doing and many others like will cause us to regress as a nation. It astounds me that people cannot understand how interconnected everything really is. Race is still a factor in many decisions in this country. The few laws that exist with it has kept people of authority and decision-making accountable for continued integration. How many people do you know in this country that do not regard race in who they hire for a position, who they go to church with, and who they socially interact with?
For as much as some Caucasians like to feel that it does not exist, try looking at it from the perspective of an African American. Look at reality. What is the ratio of race urban and surburban schools? What are the statistics urban and suburban schools? Why limit parents choices on offering their children the best education? What now? If we can honestly answer the questions pertaining to all things being equal, funding for schools, access to state of the art technology, educational standards, no overcrowded classrooms, well compensated and qualified teachers across the nation, then by all means this legislation will have no bearing on Educational standards.
What America does not realize is, continuing to limit peoples choices, continuing to overlooking inequalities in schools and in the workplace will eventually affect every household in America. Disenfranchised people will become and continue to be a burden for the county. So we can deal with it now to make it better, or deal with it later; Whether it be in taxes (more prisons), the economy (failure of non-creation of successful small businesses, jobs), crime rates, you name it, it will still effect us all. It may not affect us all socially, but try to think of someone else but yourself: We will not be allowing African Americans’ a decent start for a chance at the “American Dream”. It STARTS with education. Nationwide African Americans account for 22% of the whole population, why attack legislation to level the playing field? 22%!! Are we really that desparate to degrade race relations? Lastly let me ask you this Elaine, if you were an employer, and you had two candidates both black and white, both with the similar levels of education and experience, who would you pick? I would think the one that you feel you would be most comfortable with. Now if you went to school with no blacks, and you don’t live around blacks, what would be your honest choice?
I worked for an Indian lawyer for 2 years in my last position as her assistant…fantastic woman with aspirations to become a Judge in Britain. Over my father’s fireplace hangs a tribal scene wrought in copper – a gift from black people. It states: One heart One way.
My brother employs as his assistant a black woman, now pregnant and about to embark on maternity leave (unknown as to whether she will return yet). My SIL is of Arab/Italian heritage.
…you are asking the wrong person to think of someone else. I’ve been putting others first since I took my first steps under my Father’s tutelage.
If I were an employer I’d employ Bob Marley.
http://news.bbc.co.uk/1/hi/world/americas/6252206.stm
Would you say that the article in this link was an unfair report on the mixed feelings about the issues involved and that Civil Rights Groups are treating Roberts like the anti-Christ?
Seems to me that there is recognition in many advocacy groups for a sea change of thought and principle when it comes to tackling matters of race.
Elaine, American history is different from British history. Even as they were being emancipated after the Civil War, African Americans were given promises that were not kept. In order to provide them with an economic basis, they were told they would receive “forty acres and a mule,” but they became tenant farmers and wage slaves instead. They were promised the vote, but poll taxes and tests and overt rejection kept them disenfranchised for a hundred years. They were promised citizenship and legal protection, but got Jim Crow laws and lynching instead. Even now, the healthcare and education and housing available to them is inferior and more expensive.
The United States has a profound responsibility to rectify these historical crimes. Doctrinaire individualism is inadequate.
Your essay was thought provoking and I appreciate your response.
I enjoy considered replies devoid of rhetoric and demonology, so thank you.
Whilst I understand the value of what you say one cannot ask each new generation to pay the price for their forefathers crimes…particularly once the blood becomes mixed.
I am aware of American History but I am no expert…
What interests me considerably is what black individuals have to say and various Civil Advocacy Groups. I see opinion divided as to the way ahead and I would hate for my children’s children to have to hang their heads in shame over something they were not party to and had no control over. There comes a time when you look to the future with individual merit driving the agenda.
The American ‘soup’ is a fascinating one and I enjoy the process of learning about it.
If only there were more Denzel Washingtons and Colin Powells.
There would be more Colin Powells and Denzel if there was a level playing field and that is what these bias laws made by the decendants of racist and one uncle Tom who benefited from the very rights that he is over turning leaves America with, an unleveled playing field.
You just don’t get it and judging by your comments you probably never will.
I didn’t mean for it to be a personal attack. It is about what the law does not tackle. It pertains to the social aspects, the intangible affects of such legislation that does not take into consideration normal human behavior. We are going to gravitate to where we feel most comfortable. The bottom line deal race relations and interdependent institutions whether in covert or overt. This decision degrades an institution. This legislation is bound to effect other federal laws such as continued pressure about affirmative action in many states.
Why was affirmative action created? Why was Browne vs. Board of Education created? Because a certain race was denied entry into schools, certain professional jobs, and public institutions that did not grant African Americans certain educational and employment opportunities. Now, we can call it zoning, and we can rationalize why many minorities are not represented in certain companies and or positions, and but it does not come without a price that eventually effects us all is simply my point.
Normal human behavior will continue to create segregated groups and neighborhoods. If sets of people do not grow up around certain types of people or races and have a positive understanding of their culture, chances are individuals will live and commune with who are naturally around them, who look like them, etc. It will be quite interesting to see the effects/affects of this legislation in 5-10 years.
I’m with Reggie — the magnitude of the brainpower and talent that’s been buried due to racism is beyond contemplation. Americans have proven again and again that they will suffer damage to themselves to inflict hatred on their neighbors.
The playing field has leveled in the U.S. due to these laws that have pushed back unlegislated racism. Because the playing field is less uneven than before, the “block of five” on the Supreme Court has the cover to say imply that the situation has improved enough to return to color- and class-blind policies, thus allowing the playing field to be returned to its previously drastic imbalance.
I think of these laws based on race as unfairness in pursuit of fairness. The U.S.’s racist bias has to be held back by artificial means until the field is truly level and will stay that way by itself. What the block of five has achieved is fairness in pursuit of unfairness, and they whole country will suffer so this minority can have their hate.
Very, very well said Ingrid! Your insights on these situations are not only astute, but exceptionally well informative. Hopefully, this will open the eyes of many individuals on this blog regarding this subject matter.
Just to throw my .02 cents in: Its funny and I always revert back to September11th as an example. On September 10th, as some of us concluded, to other races, we were either known as coons, niggas, waps, gooks, kikes, sandniggas, fags, etc., etc., . etc. – any derrogatory caption that we referred to another class of people. BUT…on September 11th-somehow, it took a tragic event that made all of us vulnerable and we band together, hand-in-hand, man, woman and child, no matter WHAT RACE, RELIGION or CREED-we all came together as a people united to get through it. That right there taught me not only the value of life, but that NO ONE is above any one else. We all were affected. What happened after that? We all went back to our old ways of hatred, harsh judgement of others and self gratification. I pray that one day-even if it doesnt happen while I’m alive-ONE DAY, we can all put aside our prejudices and learn to coexist. Maybe my grandchildren will be able to see this come to fruition. But for now, I still see this as a ME against THEM society.
Bottom line: You don’t know WHO it will be who has to hold your hand or wipe your a** when you take your last breath in this life. So we all better recognize, life is too short for bullsh*t!!! So lets get it together people!
17: “… that is what these bias laws made by the decendants of racist and one uncle Tom who benefited from the very rights that he is over turning leaves America.”
You make my points very well for me.
Ingrid:
I did not take your comments as a personal attack – far from it. I do apologise if I gave you cause to think that. The personal attacks in a blog are obvious for any informed/intelligent reader to see for themselves…
Points of Law and highly technical issues remain of interest for me and I have a healthy respect for those who immerse themselves in the Study of Law.
Sometimes the Spirit of Law is forgotten but Law does evolve and arguments using precedents that are well constructed can be extremely enlightening.
Social Engineering has been carried out for years now in the UK but we still have a long way to go when it comes to being a truly integrated people. We are, however, on that journey and we have numerous, highly valued, extremely intelligent people of all persuasions and ethnicity making their mark on Public Life.
One sad fact I always keep in mind about one of the best employers I ever had the pleasure to work for is that until me she could not keep assistants for more than 6 to 8 months.
We often lunched together. She would be one of your ‘haves’ in the USA when it came to property and wealth, a Sikh and both her sons attended private schools.
The sad fact? She firmly believed that most white females she encounted in the workplace did not like her and didn’t want to work for her. It did not make her bitter and twisted – she was a wise woman – and treated me as an individual and not as a member of that ‘white female group’.