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 triumphsâ€”the 1954 antisegregation case Brown v. Board of Educationâ€”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 Americansâ€”to their detrimentâ€”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 governmentâ€”to their advantageâ€”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 discriminationâ€”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 â€¦ 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.