Arguments Blog
Tuesday, Aug 4, 2015, 6:23 AM

Gutting Voting Rights in the Name of Freedom

Nathan Pippenger

View image | gettyimages.com

Jim Rutenberg’s investigation of the conservative campaign to gut the Voting Rights Act (VRA) has many virtues, one of which is its reconstruction of an important intellectual lineage that stretches from the heyday of the conservative movement to today’s Supreme Court—and the figure at its center, John Roberts.

The Court’s 2013 decision to strike down part of the Voting Rights Act did not exactly come as a surprise. Chief Justice Roberts had invited a challenge to the law in a 2009 opinion, raising the question of whether “conditions continue[d] to justify” its preclearance requirement mandating Justice Department approval of changes to election law in certain states with histories of discrimination. As Rutenberg demonstrates, this was no idle musing: The chief justice has been concerned with the VRA since the earliest days of his career. As a young assistant in the Reagan Justice Department, he argued for higher burdens of proof for VRA cases and worried in a 1981 memo about federal intrusions “into state and local processes.” When, two years ago, he struck down the formula for determining which states would fall under the preclearance requirement, Roberts was “echoing the language of his Reagan Justice Department memos from more than 30 years earlier.” He was also getting the chance to apply their philosophy to the real world.

That philosophy was cultivated at the Reagan-era Justice Department, where conservative appointees promoted a new approach to the VRA, against the preferences of the department’s career lawyers. Their argument was that cases brought under the VRA should have to show racist intent, not just racially skewed results. This was a leading part of what Rutenberg calls “a new argument with profound implications: Justice should be colorblind.” A former colleague of Roberts distills the argument into a snappy soundbite: “It’s a very bad thing for this country to have race-based decision making in any public transaction.”

However jarring it is to hear the language of anti-discrimination mobilized to combat civil rights activists, Roberts finds it compelling. He offered his pithiest endorsement in a 2007 ruling : “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This line, formulated in a parallel fashion intended to turn the liberal argument on its head, instead reflects the basic confusions of “colorblind” thinking. When the government takes account of race—for affirmative action, for school integration, for determining the fairness of election law—it’s using race as a proxy for discrimination. That is absolutely different from taking race as demonstrative of personal characteristics, or of biological or cultural traits. In a critique of “colorblind” thinking, the philosopher Elizabeth Anderson has noted that denying “a tight connection between race and race-based disadvantage is empirically deluded.” What “colorblindness” seems to be demanding, then, is not that we ignore race, but that we ignore the substantial disadvantages that can come along with it.

In a recent article in the Stanford Journal of Civil Rights and Civil Liberties, law professor Ronald Turner refers to this mistake as “focusing on race and not racism.” Roberts’s focus on the former leads to a fixation on classifications as inherently objectionable, regardless of their intent. This principle, when applied in the context of civil rights law, can become suffocating. The “race-based approach,” writes Turner, “is disconnected from this nation’s racism-based history and realities” (emphasis added). This leads Roberts, Turner writes, into an “acontextual/ahistorical approach” to the subject of race, which “unsurprisingly yields the conclusion that all race-conscious measures, including plans designed to promote racial integration and diversity, constitute unlawful discrimination on the basis of race.” The colorblind refusal to distinguish between bigoted intent and egalitarian intent is confused morally and historically, and it does serious harm to civil rights law. That would be enough, even if it weren’t doing so in the name of equality.

 

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