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

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.