The Scary Origins of Chief Justice Roberts's Decision Opposing the Use of Race to Promote Integration





Ms. MacLean is author of Freedom Is Not Enough: The Opening of the American Workplace (Harvard University Press, 2006) and Professor and Chair of History at Northwestern University.

Chief Justice John G. Roberts reversed a half-century of precedent and progress on civil rights with his decision on school desegregation. That was the prerogative granted him by the President and the party who entrusted him to shift the Supreme Court to the right.

But no one should grant Roberts a free pass when he says “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. ” His opinion has its lineage in a well-documented conservative strategy to hijack civil rights rhetoric to roll back advances toward substantive equality.

Roberts’s decision, which denied local communities the right to choose race-conscious methods, is replete with quotable phrases from the lexicon conservative strategists honed in their think tanks in the 1970s and then carried into the nation’s courtrooms through their various legal societies.

Roberts claimed to be upholding the spirit of Brown v. Board of Education. Yet the conservative movement that put him on the bench bitterly opposed the Brown decision and has fought every serious civil rights initiative since.

The year after Brown, 1955, as Martin Luther King, Jr. led the Montgomery bus boycott to victory, William F. Buckley, Jr. launched the National Review to “stand athwart history, yelling Stop.” It is no secret that Roberts has worked with the Federalist Society and other conservative legal organizations favored by the National Review.

National Review was part of a larger movement that created institutions which shaped and trained several thousand young conservatives,” as Irving Kristol has written, “to go into the Republican party and take control of it.” Scholars, too, cite the magazine’s founding as the start of the movement that brought Ronald Reagan and George W. Bush to the White House. Reagan and Bush, in turn, appointed the justices who drove the recent school ruling.

So how did National Review greet the Brown decision? Frank Meyer, its founding co-editor and the leading conservative movement builder in the formative years, called the high court’s decision a “rape of the Constitution.”

To fight the implementation of Brown, Buckley and Meyer forged an alliance with the intellectual architect of “massive resistance,” James Jackson Kilpatrick. Kilpatrick’s agitation against school desegregation as editor of the Richmond News Leader earned him praise as “one of the South’s most talented leaders” from the Mississippi-based white Citizens’ Councils then working to crush the civil rights movement.

Buckley traded mailing lists with this avid white supremacist organization in 1958, assuring its leader that “Our position on states’ rights is the same as your own.” Indeed, it was. What made “the White community” in the South “entitled” to use any means necessary to keep blacks from voting, Buckley had editorialized the year before, was that “it is the advanced race” so its “claims of civilization supersede those of universal suffrage.”

Northerners like Buckley and Meyer allied with southern segregationists not only from racism, however, but also from shared conservative convictions, not least what they called the “original intent” of the Constitution. The pioneers of this tradition were defenders of slavery in the antebellum era and its apologists thereafter. They used their peculiar readings of the Constitution to limit what democratic government could do for its citizens, an approach embraced today by the Federalist Society and the conservative block on the Supreme Court.

Buckley and his allies fought the quest for social justice at every turn. They urged the defeat of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and every measure to promote true fairness thereafter. National Review warned that the Civil Rights Act “would undermine the most precious rights of property.” “The whole basis of individual liberty is destroyed,” it insisted, when “the citizen’s right to discriminate” is denied.

Yet the civil rights movement so altered American culture that even conservatives learned they must update their sales pitch. They were tutored by northern neo-conservatives like Irving Kristol, who in 1964 warned Buckley of the “political folly” of arguing against school desegregation “in terms of racial differences.” Buckley and his allies wisely dropped the racial rationales and most now say that they regret their earlier arguments.

But their core commitments stayed the same. To fight social justice, conservative spokesmen simply mastered the art of rhetorical jujitsu. They seized the civil rights movement’s greatest strength--its moral power–to defeat its goals. They complained less and less that civil rights measures violated property rights, aided communists or elevated racial inferiors. Instead, conservatives claimed that civil rights measures themselves discriminated.

“I am getting to be like the Catholic convert who became more Catholic than the Pope,” Kilpatrick marveled in 1978 about his own altered phraseology. “If it is wrong to discriminate by reason of race or sex,” intoned the outspoken enemy of civil rights, “well, then, it is wrong to discriminate by reason of race or sex.”

The former segregationists now portrayed themselves as the true advocates of fairness. They framed “the egalitarians,” in Kilpatrick’s words, as “worse racists--much worse racists--than the old Southern bigots.” Color blindness, conservatives had come to see, offered the most promising strategy to defeat the push for equality.

Stealing civil rights language for rhetorical jujitsu attacks on the civil rights movement was a calculated strategy. In its 1981 Mandate for Leadership for the Reagan administration, the Heritage Foundation explained: “For twenty years, the most important battle in the civil rights field has been for control of language,” particularly words such as “equality” and “opportunity.” “The secret to victory, whether in court or in congress,” it advised, “has been to control the definition of these terms.”

The Federalist Society, with which Chief Justice Roberts has collaborated and to which the Bush administration looks for judicial nominees, avidly promotes this maneuver.

That’s little wonder. The president of the Federalist Society is Eugene B. Meyer, the home-schooled son of the conservative movement tactician and National Review co-editor who declared the Brown decision “a rape of the Constitution.” Back when the elder Meyer wrote, conservatives were truthful about who they were and which side they took.


comments powered by Disqus

More Comments:


Edward Calvert Nixon - 5/9/2009

Thorough scholarship requires far more reading than most academic historians are willing to allow. Gellmann deserves praise!


Stan VerNooy - 8/24/2007

If, as Justice Stevens claimed, no member of the 1975 court would have agreed with the recent decision, that only goes to show how drastically distorted and intellectually dishonest the court's use of the constitution had become by that time. It is clear to even the most childlike mentality - as long as that mentality is HONEST - that Brown vs. Topeka enunciated the principle that government policies that discriminate on the basis of race are unconstitutional. It is equally clear that the Seattle and Louisville cases were decided on the exact same basis.

I am sure I am not the only person to note that the rant to which this comment is being attached contained not one shred of constitutional reasoning – nor any other kind of reasoning. The entire diatribe is a classical example of the liberal belief that policies and legal cases should be determined by which group of people you favor, rather than by the principles of justice as laid out in the constitution. And, of course, in the liberal mindset, any policy supported by the activist members of a Designated Victim Class is automatically to be preferred, regardless of its conflict with justice, the law, or even the most explicit constitutional requirement.

The only disturbing aspect of the recent decision is the dissents - which provide evidence that we have not rid ourselves of the significant component of the federal judiciary that still believes the constitution to be nothing more than an impediment to be overcome – a "living" constitution, in their sickenly dishonest vocabulary – an object to be twisted to mean either nothing, or to mean the exact opposite of what it actually says, as long as the goal is noble enough. And, of course, they reserve to themselves the right to determine the meaning and application of the word "noble."


Jonathan J. Bean - 8/16/2007

See also Irwin Gellmann's work on Nixon's congressional career (he researched all 1500 boxes -- the only historian to do real archival work in that depth). He has a book coming out on Nixon's vice-presidential years that will debunk a lot of myths -- much like Nichols' book will do on Eisenhower.

yes, nixon was complex.


Jonathan J. Bean - 8/16/2007

Read Kotlowski's _Nixon's Civil Rights_. The southern strategy was Harry Dents idea and Nixon rejected it.


Maarja Krusten - 8/12/2007

For more on archival records at NARA, see the many articles in the issue of Prologue on research in African American history, table of contents and links at
http://www.archives.gov/publications/prologue/1997/summer/index.html

This is the volume in which John Vernon's article was published in 1997 (my note above has a typo sayhing 1998).


Maarja Krusten - 8/12/2007

As a former archivist who once was tasked with screening Nixon's tapes and documents to see what could be released to the public, I know Nixon was a complex figure who showed various sides to people at different times. His former aides, such as William Safire, have said as much. And released archival materials confirm that. For more on Nixon, see my comment above at
http://hnn.us/readcomment.php?id=112164&;bheaders=1#112164


Melissa Macauley - 8/12/2007

You are confusing the categories of analysis. The category under analysis is "conservative." No one is denying that conservative southern Democrats opposed the civil rights movement. No one is denying that many liberal Republicans supported it. Conservatives--of both parties--opposed it. By the way, you have a pretty rosy view of Richard Nixon. After all, it was he who launched the Republican "southern strategy" which led all of those conservative Democrats into the Republican party and helped transform it into the party it is today.


Maarja Krusten - 8/12/2007

These things are not always clear cut. All the more reason for historians to avoid a didactic approach. Take just one example – Richard Nixon.

Nixon as Vice President had a moderate record on civil rights. As a Republican, he appeared reasonable in 1956 during a period of time when Democrats had to grapple with the implications of the Southern Manifesto, for which nearly all the signatories were Southern Democrats. (Some Democrats, such as Lyndon Johnson and Al Gore, Sr., father of the future Vice President, declined to sign it.) Northern and Southern Democrats were split on issues related to civil rights, as noted in this item on the Southern Manifesto in TIME magazine in 1956: .
(http://www.time.com/time/magazine/article/0,9171,824106,00.html )

Martin Luther King, Sr., initially endorsed Nixon for President over John Kennedy in 1960. He later switched his support to the Democrat, reportedly due to a phone call Robert Kennedy made to offer assistance after his son, Martin Luther King, Jr., was jailed during a sit-in demonstration in 1960.

As President, Nixon supported the Philadelphia Plan and expanded affirmative action. But he also said in private, "We don't owe the blacks a damn thing, anyway."
(http://abcnews.go.com/Politics/story?id=3366529 )
See also
http://archives.cnn.com/2001/ALLPOLITICS/stories/01/11/rumsfeld.comments/

In public, President Nixon proposed bold action on welfare. It was not until Nixon's chief of staff, H. R. Haldeman, published his diaries in 1994 did historians find out that Nixon told his chief of staff regarding the Family Assistance Plan, "to be sure it's killed by Democrats and that we make a big play for it, but don't let it pass, can't afford it." (NARA now provides a guide for researchers interested in studying Nixon’s actions on welfare reform –
http://nixon.archives.gov/forresearchers/find/subjects/welfare-reform.php )

Haldeman also noted in his diary that the President noted that the administration should not put much effort into communication efforts "except with Uncle Toms and we should work on them and forget militants."

So how should historians assess Richard Nixon or other politicians of the 1950s, 1960s or 1970s? Even Nixon's supporters weren’t always sure. In an article on Jackie Robinson published in Prologue magazine in 1998, one of my former colleagues, John Vernon, noted of Robinson that

“Initially he was high on Richard Nixon and campaigned for the Vice President in 1960 against John Kennedy after Hubert Humphrey, whom he originally supported, dropped out of the race for the Democratic Party's nomination. Yet by 1968, Jackie grew disappointed with what he viewed as Nixon's tepid stance on civil rights and chose to campaign actively against him. In April 1972 a now much-subdued Robinson wrote a Nixon White House deputy that in retrospect he believed that Presidents only engaged in ‘smoke screen’ deceptions to trick blacks into believing that there was official support for obtaining legitimate racial aims.”
(See
http://www.archives.gov/publications/prologue/1997/summer/jackie-robinson.html
I assisted Mr. Vernon in his preliminary research for this article during the end of the 1980s while I still was a NARA employee.)


Jonathan J. Bean - 8/12/2007

Much attention paid to John Roberts opinion but little to the concurring opinion of Justice Thomas. See an excerpt and my commentary over at "Liberty and Power":

http://tinyurl.com/2n3gm4


Jonathan J. Bean - 8/11/2007

Much attention paid to John Roberts opinion but little to the concurring opinion of Justice Thomas. See an excerpt and my commentary over at "Liberty and Power":

http://tinyurl.com/2n3gm4


Maarja Krusten - 8/11/2007

In examining historical issues retrospectively, some academics do better in setting aside their personal political views than do others. The late Stephen Ambrose was a self-admitted opponent of many of Richard Nixon's policies while he was President. Obituaries noted as much (see, for example, the reference to his having been a pony-tail wearing liberal in the obituary at
http://www.olemiss.edu/mwp/news/2002/2002_1013ambroseobit.html )

Yet Ambrose noted in acknowledgments to the final volume of his three-volume Nixon biography:

“Ever since the Hiss case, I had been a Nixon critic. . . . [but] in volume one I developed a grudging admiration for the man (he had been right on the Hiss case, while I had been wrong; he was outstanding in his support of the Marshall Plan and for civil rights; he served Ike well and faithfully as Vice President); in volume two I came to have a quite genuine and deep admiration for many of his policies (détente and China most of all, but others as well), and in volume three I found, to my astonishment, that I had developed a liking for him.”

I'm not a big fan of stereotypes. The way people think, their life experiences, good and bad, the reasons why they associate with one group or political party or another, what goes into any one person’s sense of self or self image, how willing a person is to engage in reasonable debate with others, where people get and how they process information, all that just seems too complex and variable for me to be comfortable with pigeonholing people.

I worked with Ambrose as an employee of the National Archives’ Nixon Project during the 1980s. But I also had occasion to speak to him in my personal rather than professional capacity. I mentioned to him what I thought was a possible misunderstanding on his part in the way he had written in the first volume of his Nixon biography about an Eisenhower-era Captive Nations Week proclamation. I did it tactfully, noting, you wrote this and this, but have you considered that it also could have been that and that.

Ambrose reacted very well to my pointing out an alternative interpretation. He said he appreciated my speaking up, that he hadn't considered the issue in that light and that he would keep in mind what I had pointed out. Not everyone would have done that. Another person might have reacted with anger or taken what I said as an affront.

I generally wish more authors of articles posted on HNN would engage with the people who post comments. Some do, of course, but at least on the main page, it doesn't seem to happen often.


Jonathan J. Bean - 8/11/2007

Apologies: Last post was an error made by my roboform program.

There are so many studies of a lack of faculty diversity in the humanities, but here is one from the Independent Institute which is particularly revealing:

http://tinyurl.com/ek66h

I did primary record analysis of my own College of Liberal Arts -- entire departments without a single Republican. History had 22 people vote in Democratic primaries (over three election cycles), and one person voted in a Republican primary. Such primary records are available in Excel format from county recorders.

For my results, see http://tinyurl.com/2eug8w

The usual caveats about the limits of such studies apply, of course. More scientific analysis done by Seymour Martin Lipset, et al. in _Academic Questions_ and by law professor James Lindgren (Northwestern) who found that white female Republicans and Catholics were the most underrepresented on law school faculty.


Jonathan J. Bean - 8/11/2007

I echo Schneider's comments. Maclean's essay shows she knows nothing about the many strands of conservatism, some of which were distinctly classical liberal and opposed to Buckley and the National Review. I suggest Professor Maclean do more reading on the history of conservatism and libertarianism. The arguments made by the NAACP up to and including Brown were classic liberal to the core, not the "social justice" gruel of post-1964 "liberalism."


Thomas W Hagedorn - 8/11/2007

I can only speculate how Professor MacLean can make sure broad statements about "conservatives", as if they (we) are a monolithic group. Perhaps it is because it is unlikely that she has much personal contact with more than a handful of conservatives. Surely, you would find very few Republicans, for example, on the faculty in her history department at Northwestern. If there are a few there, it is even less likely that they would be Reagan Republicans. Likewise, when she goes to conferences, she will be talking with rooms full of Nixon, Bush and Reagan-haters, and is unlikely to have many serious conversations with any supporters of these presidents. You see, in the Humanities today, diversity is celebrated, as long as you have orthodox intellectual beliefs and positions. Basically, if you think of a monastary or cloister, you are getting close to the picture I am painting.


David T. Beito - 8/11/2007

The long record of opposition by political conservatives to granting my ancestors, including my parents, and all African Americans their rights as citizens of this country is what is truly shameful.

Long record? Neither side is angelic but let's have some perspective here. The conservatives (including Harding, Coolidge, and Hamilton Fish) were pushing anti-lynching legsilation in the 1920s and 1930s while Roosevelt, still an icon in most textbooks, was casting a blind eye toward racial violence and disfranchisement and destroying black jobs through the NRA (aptly called "Negroes Ruined Again"].

Few presidents, other than Woodrow Wilson, had a more atrocios civil rights record than FDR. He was also hypocritical? While Eleanor was standing up to the DAR, FDR did not nothing to end segregation in the District of Columbia's public schools (which also denied a forum to Marian Anderson). It was the conservatives, including Robert A. Taft, who led the charge to unseat Bilbo in 1947.

The first Civil Rights Bill was pushed through by the Republican Eisenhower and supported by Goldwater. It would have been stronger had it not been gutted by LBJ and others.

In 1964, GOP legislators, most of them conservatives, were more likely than their Democratic counterparts to vote for both the Civil Rights view and the Voting Rights Act.

The conservative record on race has many short-comings but then a fair comparision would show that that the liberal record does too.


Maarja Krusten - 8/11/2007

A few comments directed at the tone Nancy MacLean used rather than at the underlying premise of the essay (on which I am not taking a position here).

I'm an historian but not a teacher. I'm too old to have studied the civil rights era in school except when it came up in discussion of then current events during the late 1950s and the 1960s. Of course, in later years, I've read about the period (Charles Marsh's very interesting book, _God's Long Summer_,; James T. Patterson's _Brown v. Board of Education_; a number of other books that look at events during the 1950s and 1960s, including ones by Taylor Branch, Robert Caro, etc.).

I’ll mention again that I’m an Independent, an identifier that I've attached to myself since 1990. Although in recent years I haven't been affiliated with either party or any particular ideology, from 1968 through 1988, I self-identified as a Republican. That didn’t then and doesn't now keep me now from wanting to understand U.S. history -- the good, the bad, and the ugly.

Because I’m not involved in academe, I have no way to tell whether the attitude described in this anecdote about a student at
http://hnn.us/blogs/entries/24574.html
is an anomaly or not. But I’m interested in how the person whose views are quoted there came to identify the study of the civil rights era with Democrats.

In writing about complex issues on HNN and elsewhere, aren't there risks in using a polemical or broadbrush approach?

I learned in this essay some things I hadn’t known about past actions and beliefs articulated during the 1950s and early 1960s by people whose writings I later had read in National Review when I subscribed to it during the 1970s and early 1980s. Those views from the 1950s dismay me.

But Nancy MacLean errs in not making it clear to the reader whether by saying “conservative movement” she means some specific activists or everyone who self identifies as a conservative. Conservatives are no more monolithic or one-issue voters than any other group is. As an Independent voter who is not an ideologue, I can’t offer insights into the minds of all who call themselves conservatives these days. But I do know that when I once called myself a conservative during the 1970s and 1980s, I linked that to views I held on foreign policy and fiscal policies.

I believe that people may apply labels to themselves (conservative or liberal) and still also disagree on some issues with other people who also self identify by applying to themselves the same broad label. Not everyone marches in lockstep on everything. But I’m curious as to why some people who write essays here, or comment on them, imply that others march in lockstep.

I suspect most of the people who write here know and tolerate or even like neighbors or co-workers who hold political views different from their own. I know I do. Of course, there always are some people throughout the political spectrum who give off a sense, “I can only be somebody if I consider you to be nobody.” It would take an expert in a field other than history to unravel why that occurs sometimes. I can’t do that.

But I’m intrigued on HNN and in other web forums by the frequency with which the sense that human beings have complex motivations for holding the beliefs they do often gets lost when people talk about Republicans or Democrats or conservatives or liberals. It’s not as if the evidence to examine how voters reach conclusions isn’t there for historians to study. Just recently I had to point out under one book review posted here that, Nixon-era political manipulations aside, there are unexamined records at the National Archives in which citizens explain directly why they considered themselves part of the “Silent Majority” after 1969. Their views hardly were monolithic.


Jonathan J. Bean - 8/11/2007

A Republican president appointed John Roberts to the Court. Why not trace the Republican party's activities during the 1950s and early 1960s?

1953: Eisenhower desegregates the city of DC, no small feat.

1953: Eisenhower makes Warren a recess appointment so that he can review and decide Brown v. Board. E. knew Warren's views on civil rights (see Governor Warren's response to the Mendez case of '47)

1954-1960: Eisenhower appoints six Sup. Ct. justices. He has a litmus test: They must support Brown and not be from the Deep South.

Sound "scary" so far? Let's proceed.

1956-57: VP Nixon and Attorney General Brownell submit a "full package" civil rights bill to Congress. While Republicans back the bill, Senate Democrats, led by LBJ, watered it down to meaninglessness. (Shall I quote LBJ's opposition to antilynching bills in the late 1930s as a return to "bayonet rule?").

1960: Ditto.

1964: Goldwater opposes CR Act on libertarian grounds (actually, he distinguishes between the parts he accepts -- striking down Jim Crow -- and the two parts that he thought encroached on the private sphere).

What does the GOP do in Congress? Vote OVERWHELMINGLY for the CR Act, in far greater numbers than the Democrats.

Obviously, the above indicates there were differences in the GOP but, by and large, although "conservatives" by today's measures, they stood for civil rights.

The Democrats, on the other hand, were rather consistent: They supported government-backed racial discrimination up to '64 and then they favored a new form of government-backed discrimination from '65 onward although many civil rights liberals were troubled and even opposed re-racial classification. (See Hugh Davis Graham's works, John David Skrentny, and more).

Since then, the GOP has generally supported racial preferences, in action if not rhetoric. Liberal historians have rediscovered "Nixon the liberal" and noted his embrace of racial preferences (see Kotlowski, _Nixon's Civil Rights_). Even those who spoke out against racial preferences actually expanded it -- Reagan is a case in point. (See my book, _Big Government and Affirmative Action_, and Nicholas Laham's deeply researched _The Reagan Presidency and the Politics of Race: In Pursuit of Colorblind Justice and Limited Government (1998).

An important work on Eisenhower and civil rights, demolishing the textbook stereotype of an unconcerned president:

David Nichols, _A Matter of Justice: Eisenhower and the Beginning of the Civil Rights Movement_ (2007).

http://tinyurl.com/2fpz46




Does this sound a bit more complex than the fairy tale history of Maclean?


Jonathan J. Bean - 8/10/2007

I echo Schneider's comments. Maclean's essay shows she knows nothing about the many strands of conservatism, some of which were distinctly classical liberal and opposed to Buckley and the National Review. I suggest Professor Maclean do more reading on the history of conservatism and libertarianism. The arguments made by the NAACP up to and including Brown were classic liberal to the core, not the "social justice" gruel of post-1964 "liberalism."


gregory l schneider - 8/10/2007

My concurrence is added to Robert Collins for going back to the source and elucidating just what Roberts meant in his argument.

I always find it odd that historians want to elevate the "Right"--whoever that is--to a consistency in thinking and a continuity in beliefs that is simply lacking among conservatives. If working historians at elite universities actually knew a few conservatives they might see that they actually differ quite a bit among themselves. Indeed, they are usually quite civil when they argue with each other (such arguments usually end at the bar with brandy and cigars, at least in states where one can still smoke).

To put it simply, there is no consistent conservative ideological position on race or any other issue--just look at the disputes among conservatives over Iraq. Certainly Roberts could have been influenced by National Review and Irving Kristol and the whole "party line" of conservative thinking Maclean likes to think exists on the Right. But as Collins says, and Roberts own decisionsproves, precedent and legal thinking trumped everything else in his decision.

The leap Nancy Maclean makes between the 1950s conservatism of National Review to the John Roberts Court is astounding. How is John Roberts a defender of segregation? Well he is a product of conservatism and all conservatives supported segregation. Ok, then Joseph McCarthy was right when he implied that most liberals were communists---they both believed in bigger government; or, better yet, a story from an actual conversation with a historian: the endgame of Reagan's inaugural address in 1980 when he said "government is not the solution to our problems, government is the problem" came with the Oklahoma City bombing in 1995--Timothy McVeigh hated government and was motivated by Ronald Reagan's words to destroy it. Jeez.

Clearly some conservatives in the 1950s had problems with civil rights, as much because of its purported links to communism as anything else. Yes, a few embraced the ideas of James J. Kilpatrick on states rights and interposition. Kilpatrick also wrote with disgust about the whites he saw beating black students during the sit-ins in 1960. Yes, William F. Buckley wrote absurd editorials on civil rights in the late 1950s.

Maclean is correct to point this out.
But many others on the Right, including classical liberals, libertarians, and even quite a few conservatives, never had an issue with civil rights. They disliked liberalism (especially the liberalism of LBJ) and it was the liberals who supported civil rights. Was this a bad thing? Immoral? A tragedy? Perhaps, but for them to support Barry Goldwater in 1964 was as natural to them as feminists voting for Bill Clinton in 1996.

We need to get beyond simplistic and flawed descriptions of the "Right" and what it was (and is). Most historians are not sympathetic to the "Right" but that does not mean they should eschew their obligation to be fair minded and strive for objectivity on key questions. To make a specious link between National Review in 1959 and John Roberts today based on the flimsy evidence Maclean employs, is hardly the type of history which will advance our understanding of conservatism and race.




Melissa Macauley - 8/10/2007

I think you misrepresent her point. Her point is that conservatives changed their vile and unedifying rhetoric in order to more effectively destroy the fruits of the civil rights movement, in particular the Brown v. Board of Education decision. Roberts used this new rhetorical strategy to achieve just that. As you note yourself, conservatives opposed the civil rights movement in an immoral manner. It was also undeniably a blatantly racist manner which will forever stain the history of conservativism in America. Conservatives eventually learned to clean up their rhetoric, adopting slogans like "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." You can pretend that Kilpatrick's cleaner slogan was race-neutral if you like, but it was not race neutral. Justice Roberts' decision undermined 50 years of legal precedents based on Brown. He used the same "clean" slogan Kilpatrick adopted in order to turn back Brown. You can grab at a word here or a phrase there that Prof. MacLean might have chosen differently. In order to undermine her essential point, however, you will still have to give us that alternative, fact-based history of American conservativism that doesn't end with John Roberts adopting Kilpatrick's rhetorical strategy to fulfill the conservative goal of overturning Brown v. the Board of Education.


Thomas W Hagedorn - 8/10/2007

Bravo! What a novel suggestion. To actually read what the Justice wrote in his opinion and base your opinion on his words, instead of using what looks like a "six degrees of separation" technique to tie Roberts to every vile racist that she can (past or present, reformed or not). But you see, Robert, that would undermine Professor MacLean's intent in writing this article. This article, after all, has a purely polemic purpose, thinly-disguised as scholarship.


robert m. collins - 8/9/2007

I did not initially comment in order to defend the opposition of far too many conservatives to the civil rights revolution of the 1950s and 1960s. That opposition was conservatism’s great moral, intellectual, and political failure of the modern era. Professor MacLean describes that failure acutely. If that were the sole point of her essay, we would be in agreement. But it is not.

Professor MacLean argues further that to be conservative is, by virtue of her definition and reading of the historical record, to be racist, and that there is a direct, unbroken line of racist malevolence and intellectual/ideological influence from William Buckley, James Kilpatrick, the white Citizens’ Councils, Frank Meyer, and the National Review in the 1950s and 1960s to Chief Justice John Roberts’ recent majority opinion in PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DIST. NO. 1 et al. (June 28, 2007). The clear implication is that to question the wisdom, fairness, efficacy, or simple constitutionality of the affirmative action/racial categorization principles at issue in that case is racist and therefore beyond the pale of legitimate discussion. Her evidence in the particular case of Chief Justice Roberts boils down to his being a conservative (prima facie evidence of racist motivation, as it were), his having “collaborated with” (Professor MacLean’s term) the Federalist Society, and his invocation of certain language—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—at the very end of his lengthy majority opinion. She insists that Roberts’ phrasing in this instance both harkens back to and updates an earlier racist conservative strategy to steal the principles and rhetoric of the civil rights movement in order to oppose and perhaps roll back hard-won African American gains. It is not self-evident to me why so obviously useful and apropos a formulation, whether correct or not, should be considered proprietary, the property of a specific group of racists to be used for their original wicked purposes only.

I wrote earlier that MacLean’s indictment of Roberts smacked of McCarthyism. Let me identify some of the reckless elements in her analysis that I find troubling: 1) Guilt by association: “It is no secret that Roberts has worked with the Federalist Society and other conservative legal organizations favored by the National Review.” 2) Strained connections: The son of National Review founding co-editor Frank Meyer, who called the 1954 Brown decision a “rape of the Constitution,” is presently head of the Federalist Society! Most fundamentally, 3) the tendency to lump all sorts of people together without making any of the necessary distinctions among varieties of (and variation in) thought and belief over time—or among the motivations that informed those varieties and the consequences intended to follow from them. And finally, 4) the effect of squelching honest and much needed discussion. At one time, the fear of being labeled a communist suppressed political discussion. Today, the fear of being smeared as a racist forestalls rational discourse on the matter of affirmative action and related policies. Professor MacLean's essay unfortunately contributes to that chilling effect by demonizing those with whom she disagrees on such matters.

As for Professor MacLean’s providing an important context (i.e., conservative racism) for understanding Roberts’ position in PARENTS v. SEATTLE, it seems to me that the context that best illuminates his reasoning is laid out clearly in the text of his majority opinion. That text can be found, together with the accompanying concurrences and dissents, at http://www.law.cornell.edu/supct/html/05-908.ZS.html. In the 10,666 or so words that precede Roberts’ supposedly self-implicating final sentence (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”), one sees not the cunning playing out of a racist conservative agenda dating back to Brown and perhaps beyond, but rather a jurist wrestling with a genuine American dilemma—how best to reconcile the tension between the Constitutional guarantee of equal protection to individuals under the Fourteenth Amendment (the government may not treat you differently according to your race) and the adoption in the aftermath of Brown of group- and race-based programs to address the ravages of past discrimination (the government, for an overriding societal purpose, has to treat you differently according to your race). In reaching his decision, Roberts works through the large body of law and legal interpretation addressing this tension, a legal corpus the very size of which testifies to the vexed and vexing nature of the issues involved. Decent, well-intentioned, smart, and reasonable people can and do disagree in these matters. In PARENTS v. SEATTLE both the plaintiffs and the defendants (and their various champions) appealed persuasively to high principle. Roberts comes down on one side, Professor MacLean on the other. Please read the majority opinion and decide for yourself whether one needs to conjure up a long-running conservative racist plot to account for that difference.


Edward H. Peeples - 8/9/2007


I am grateful for Professor MacLean’s essay about Judge Roberts and the recent Supreme court decision to reinstate affirmative action for white people which as a southerner I have known all my life. People who like to call themselves “conservatives” can throw all the ad hominem barbs at her they wish, but that will not dismiss the facts of history she lays out. I have witnessed first hand the evolution of how the racists of my southland folded protections of white privilege into what they now call “conservatism”. I was born and continue to live in the town where James Jackson Kilpatrick, the chief architect of the white supremacist ideology used in southern resistance to desegregation, did his greatest harm. It was only when our country tired of having the vulgar and bellowing expressions of racism echoed around the world, that “Kilpo” decided to go underground with his white supremacist ideology. As Dr. MacLean’s research has shown it was then that he discovered he had a place with William Buckley and the conservative movement as brothers of the skin. He then left Richmond for the conservative movement where his clever concoctions in the National Review and elsewhere were to help obstruct progress for black people nearly as effectively as his segregationist writings had done. He went on to become one of America’s most highly regarded conservative voices, without a peep of contrition for the hurt he had caused so many. I wish that Kilpatrick’s story was the only one like it, but it is not. Professor MacLean’s work documents the power and ubiquity of many others like him.

Because the protections of white privilege are veneered with appropriated language from the hard fought civil right battles against the segregationist fathers of today’s conservative zealots, they now like to claim that they are not racist and that conservatism holds no brief for white supremacy. But one does not have to score high on a racism test to comport with white supremacy. Any doctrine that promotes maintaining a policy of “colorblindness” in an era of continuing racial discrimination is complicit with a racist system. Vast numbers of American citizens of color still today start the race of life on the outside lane. But everyone knows that the shortest course to success in any race is on the inside track where all the white runners can be found.


Thomas W Hagedorn - 8/9/2007

I have read Kilpatrick's columns for years, feel I know him pretty well, and I don't find him "scary" or a racist at all. He holds to some positions that many would label liberal, such as Pro-Choice on abortion, and is married to Marianne Means, a very liberal columnist. If associations are important, then I suppose that the most intimate of associationns is relevant evidence concerning Mr. Kilpatrick.

Rick, I am assuming that you meant to link the politics of Justice Roberts to John C. Calhoun in the above post, not James C. Calhoun. That is quite a breathtaking leap of logic and 150 years that I am not willing to take. It seems to me that Roberts is to the "left" of Scalia and Thomas, though certainly a "conservative". Since you are trying to make associations with other "conservatives" in the past, I would like to link him to those conservative Republicans in Congress who voted for Johnson's Civil Rights bills in higher percentages than the Democrats. In fact, those bills would not have passed without Republican support. I applaud everyone who fought for civil rights - liberal, conservative, Democrat, Republican. A terrible wrong needed to be corrected. But 40 years is quite long enough for remediation. It is wrong to discriminate based upon race, irrespective of the race involved.


Jeff Bernstein - 8/9/2007

While I think the Seattle decision unfortunate, Justice Roberts has a legitimate basis for claiming that Brown stood for the abolition of discrimination on the basis of race as that was among the positions taken by Appellants (Thurgood Marshall et al). Brown and its progeny stand for the unconstitutionality of state-supported segregation. While I believe the Constitution permits the government to discriminate on the basis of race to ameliorate racial inequities, it is an equally fair interpretation of the Constitution that such discrimination is impermissible where no state action created the inequality.


Thomas Bender - 8/8/2007

That the decision Roberts wrote seems in the minds of much of the legal community not good law and certainly not the approach to precedent he professed in his confirmation hearing, has worried many. To now see by way of scrupulous examination of a considerable archive the long history of the very argument he brought to bear. If that long history of argument along this line had at is base scholarship it would be one thing, but given its highly ideological and literally reactionary origin and purpose, it makes Roberts willingness to associate himself and the court with it deeply disturbing.

Those who would attack McLean's careful and compelling argument ought not attack her, but rather look at the record she has brought to light. That record is the problem.


Linda Gordon - 8/8/2007

Thanks to Nancy McLean for a pithy argument with the evidence to back it up. It is important for the public to understand the political and ideological history of today's conservative politics.


Robert Owen Self - 8/8/2007

I agree with Jeff Cowie that the attacks on Prof. MacLeans's piece indicate a disintegration of political discourse, especially on the right. But I am also struck by how well the responses reflect four decades of right-wing success at shifting the rhetorical and moral debate in the U.S. This once was a nation (in 1965) when a President, whom I do not romanticize, spoke in public about civil rights and racial equality as the moral project of a generation. He was, as numerous historians and commentators to HNN have pointed out, standing on a tradition that extended back to Frederck Douglas and came forward through the long and tangled history of the black freedom struggle in the twentieth century.

That in 2007 we cannot even conceive of civil rights as anything more than the trampling of "white rights" or "reverse discrimination" or any of a number of right-wing catch phrases is evidence of how completely the rhetorical playing field has been shifted. Liberals and the left share some blame for this. But it remains a fact that the shift was driven for four decades by exactly the conservative forces MacLean identifies (in addition to others her brief piece did not have space to mention). If MacLean's critics have a different historical narrative, let them offer it for public debate. The retreat from racial equality as a goal of public policy and national ambition has been a sad development of the last 40 years. Judge Roberts has nudged us even further in that retreat.


Melissa Macauley - 8/8/2007

Conservatives cannot dispute the history that Prof. MacLean has presented here, so they predictably engage in ad hominem attacks. Please tell us where her historical account is factually inaccurate. Please give us a fact-based account of conservative America's noble history of support for the civil rights movement.


Martha Biondi - 8/8/2007

Professor MacLean has clearly struck a nerve. But it's telling that her critics resort to name calling while avoiding a substantive engagement with her argument. It seems the historical record is unsettling to a few historians, but Nancy MacLean has done us all a great service by unearthing it. We should applaud her for exposing the way conservatives have cynically and falsely laid claim to the pursuit of a color-blind society. As many, many scholars have noted, conservatives have hijacked the language of the civil rights movement! Telling this story is part of our professional responsibility.


Jefferson Cowie - 8/8/2007

One of the great tragedies of recent intellectual history is conservatives' surrender of rational discussion. Growing up, I always admired the disspasionate analysis they offered in lieu of the polemics on the left. Alas, no more. McCarthyism? Oh, please!

The tragedy of the right is obvious here, where "McCarthyite" is now tossed around in exactly the type of rhetorical jujitsu that MacLean discusses in her piece. Perlstein (above), a master of conservative history, nails the problem: what MacLean is talking about is called "historical context."

Clearly the right has a long way to go in order to reckon with a deeply troubled postwar political history. When the nation was finally forced to begin to atone for its troubled birthright as a nation of slavery and freedom, conservatives trumped up the cause of "liberty" and states rights as an obstacle to, well, exactly that: liberty.

I'm ready to to have an open discussion about the type, efficacy, and implementation of various remedies for discrimination in this country, but not when history is dismissed "bile."


Rick Perlstein - 8/8/2007

Scholars have a phrase for "talking about people and organizations loosely associated with Roberts": it's called "establishing historical context." MacLean does so soundly and fairly. There is a direct political lineage to Roberts from James Kilpatrick to James C. Calhoun and his "slavery-supporting, civil-rights crushing beliefs," and MacLean does an admirable job establishing it.


Rick Perlstein - 8/8/2007

Can the Robert M. Collins commenting above possible be the distinguished scholar who wrote The Business Response to Keynes and More: The Politics of Economic Growth in America? Because his discourse ethnics are contemptible--hurling a grave charge at someone ("McCarthyism"), then the retreat with "there are neither words nor time enough" to defend it.

(My claim is that Professor X wears a diaper. But there aren't words nor time enough to defend it.)

MacLean's is a very sound piece of historical polemic, opinionated but grounded in evidence. Perhaps that's why Mr. Collins, unable to demonstrate otherwise, resorts to name-calling.


Darryl Cox - 8/8/2007

When have conservatives ever admitted error with regard to their views about the rights of African Americans? African Americans were entitled to exercise their rights as citizens of a democratic republic regardless of the shifting views of the likes of people such as Buckley and Kilpatrick.

The time for them to have stepped forward and distinguished themselves as patriots and defenders of our nation's principles was when the crucible of racist oppression weighed most heavily on their darker-skinned fellow citizens. Apologizing for your behavior and attitudes long after Jim Crow and its defenders were brought to heel means little at all. And it certainly does not mean that they and their associates should now be given a free pass.


Thomas W Hagedorn - 8/8/2007

Professor MacLean's essay is a perfect example of neo-McCarthyism. In her narrow world conservatives can never change and admit error, while liberals (or Democrats)are never challenged for the same sins (Sen.Robert Byrd. Somehow, because Roberts is a conservative, and has rendered a conservative decision, he is responsible for (and relying upon) racist positions from conservative leaders from 50 years ago. The Professor would be running to the barricades if a conservative suggested that modern progressives are responsible for the awful positions and associations of 1920s and 1930s liberals (Stalin and communism, German eugenics, etc.)

The only thing I find "scary" is the nasty subtext of her article. She ignores the arguments against continuing affirmative action and makes personal attacks by association, even when the original "offender" has recanted (Buckley and Kilpatrick). Old Joe McCarthy would be proud.


Gerald M Berg - 8/8/2007

The initial article is a "scary" and regretfully common way of closing serious discourse about a serious problem. No less than K.O. Appiah has argued that merely acting on an idea of race necessarily entails injustice. As an historian of pre-colonial Africa for more than thirty years, I agree but consider the question open for discussion in a civil manner.


Darryl Cox - 8/8/2007

I find it interesting, although not surprising, that conservatives and other defenders of Judge Roberts and his four colleagues simply want to deny the factual basis of Professor MacLean's argument as to the intellectual and political origins of their position on school desegregation.

Professor MacLean is not engaging in name calling or accusations of guilt by association. The long record of opposition by political conservatives to granting my ancestors, including my parents, and all African Americans their rights as citizens of this country is what is truly shameful. The stance of these so-called conservatives is particularly galling in light of the fact that they never fail to wrap themselves and their arguments in the Constitution as if that document grants them absolution for their past deeds.

The world and the dream created by my people and their allies is not crumbling despite the paltry victory of the Roberts Court. What is crumbling is the ability of political conservatives to revise the past and to persuade the American people to buy into their counter-narrative of America's racial history.


Laura Veprek - 8/7/2007

I am happy to see that other readers are as disapproving of this biased article as I am. Ms. MacLean uses inflamatory, biased, and hateful language to label and entire group of the American population, the conservatives. Phrases like "hijack civil rights," "stealing civil rights language," and "rhetorical jujitsu attacks on the civil rights movement" are loaded and ridiculous. Instead of talking about Justice Roberts' record, demonstrating his position with his decisions, she spends most of her time in the article talking about people and organizations loosely associated with Roberts. It's a shame that an educated person, and a professor no less, should hold such biased and closed views that eliminate participation of half of American society. Conservative thinking isn't inherently bad, nor is it derived from slavery-supporting, civil-rights crushing beliefs.


Brian Martin - 8/7/2007

Chief Justice Roberts replaced another conservative Chief Justice Rhenquist. Sam Alito is more responsible for the shift to the right by replacing the moderate Sandra Day O'Connor.

Of course, to the moonbats of the left O'Connor was a far right winger in the Bush v. Gore decision...


Lawrence Brooks Hughes - 8/6/2007

Thanks for clearing that up. I'm sorry.


robert m. collins - 8/6/2007

I hope I have not been misunderstood. My post was directed at the original article. It is of the name-calling variety because I think in this sensitive area it is important to label some things correctly (i.e., McCarthyite). As to substantive debate, there are neither words nor time enough. If readers don't see immediately the contemptible nature of Professor MacLean's attack on those who presently hold a position opposed to hers on a matter about which reasonable, decent, and well-intentioned people can disagree, no amount of silver-tongued argument will help.


Lawrence Brooks Hughes - 8/6/2007

Note the retreat from factual argument to name calling in the two posts above. It's over for the liberals, and they quickly become intemperate as their world comes crashing down.


robert m. collins - 8/6/2007

Wow. What a contemptible little polemic--character assassination a la McCarthy, contemporary bile spewed over a regrettable (but real) historical fact.


Lawrence Brooks Hughes - 8/6/2007

It has been famously observed that the Supreme Court watches the election returns.

Look at the record of the Ward Connerly colorblind initiatives in state after state. Last November he was approved by the voters of Michigan, by a margin of two to one, despite the organized opposition of both major parties, all newspapers and TV stations, most churches and other interest groups. The Connerly state constitutional amendment in Michigan has effectively reversed the Supreme Court decisions in 2002 involving admissions to the University of Michigan. Unlike Justice O'Connor, the people of Michigan did not want to give affirmative action another 25 years.

Nobody, it seems, wants a colorblind society except the Roberts court and the people.

Subscribe to our mailing list