The John Roberts Two-Step

In 2007, Chief Justice John Roberts wrote the majority opinion in Parents Involved v. Seattle School District No. 1, which struck down race-based “tiebreakers” in school admissions programs in Seattle and Louisville, Ky. “The way to stop discrimination on the basis of race,” Roberts famously wrote, “is to stop discriminating on the basis of race.”

Last week, in his opinion for the majority in Students for Fair Admissions v. Harvard, which ended race-based affirmative action in college admissions, Roberts echoed his earlier self with a similar assertion which I also discussed in my column on Friday: “Eliminating racial discrimination means eliminating all of it.”

Both lines encapsulate Roberts’s view that the Constitution is colorblind and sees no racial distinctions.

One thing I noticed, reading both opinions, is that while Roberts may mention “race,” “discrimination based on race” and “racial discrimination,” he doesn’t discuss racism. In both opinions, Roberts underpins his argument with the court’s decision in Brown v. Board of Education.

“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin,” the chief justice wrote in Parents Involved. Similarly, in Students for Fair Admissions, Roberts writes that in Brown, the court had finally determined that “The time for making distinctions based on race had passed.”

The issue here is that Brown v. Board of Education was not about states making distinctions based on race. The question before the court was whether state governments could use racial classifications to separate Black Americans from white Americans in order to deny rights to the former and extend privileges to the latter. The question, in other words, was whether racism was a legitimate state interest.

“Brown did not raise the issue of whether states could use race-conscious classifications to integrate schools,” wrote the legal scholar Joel K. Goldstein in a 2008 analysis and critique of Roberts’ opinion in Parents Involved. “With one pertinent exception, the briefs and oral arguments focused entirely on the way in which the government then used racial classifications — to segregate and demean blacks.”

I want to highlight Chief Justice Roberts’s avoidance of racism as a prime example of “racecraft,” the term coined by the historians Karen and Barbara Fields to describe the transmutation of a set of actions (racism) into a set of qualities or characteristics (race).

Racecraft, the Fieldses write in “Racecraft: The Soul of Inequality in America,” “transforms racism, something an aggressor does, into race, something the target is, in a sleight of hand that is easy to miss.” They offer a useful and pertinent example:

This, you might say, is the Roberts two-step. He takes racism, a system of subjugation and social control, and removes the racists. What’s left is the mark of racism, that is, race. A landmark case about the legitimacy of race hierarchy — Brown v. Board of Education — becomes, in Roberts’s hands, a case about the use of race in school placement.

To remove racism and racists from the equation is to pretend that there’s no social force to push against — no inequality to rectify. Instead, there is only a quality, race, that Roberts says the Constitution cannot recognize.

The result is a society that continues to reinforce and reconstitute these previous patterns of domination, except hierarchy is now hidden from law, and what is a feature of society becomes, instead, a quality of the people afflicted.

What I Wrote

For the Fourth of July I wrote about the antislavery struggle and how it helped to change the meaning of the Declaration of Independence.

My Friday column was on Justice John Marshall Harlan’s dissent in Plessy v. Ferguson, and why we shouldn’t ignore the crucial context of his opinion.

And in the most recent episode of my podcast with John Ganz, we discussed the 1994 film adaptation of the novel “Fatherland.”

Now Reading

Edward Ongweso Jr. on Silicon Valley for The Nation.

Richard Wolin on Martin Heidegger for the Los Angeles Review of Books.

Kaitlyn Tiffany on “car brain” for The Atlantic.

Kimberlé Crenshaw on Clarence Thomas for Politico magazine.

Jerome Karabel on the broad ambitions of the civil rights movement for Time magazine.

Photo of the Week

My intent with this picture was to take a photograph of the tracks and then take a separate photo of the train. I forgot to advance the film on my camera, however, so I ended up taking two photos on the same frame. But it’s a happy accident; I think the double-exposure effect looks very cool.

Now Eating: Creamy Corn Pasta with Basil

My oldest does not like corn, so I’ve taken most of my favorite summer pastas off the menu. But that doesn’t mean I can’t share the recipes with you! I think this corn pasta is terrific. It’s also very simple, requiring relatively little in the way of effort or energy. I don’t have any tweaks to make to the recipe, which comes from New York Times Cooking, but I will say that you won’t go wrong serving this with a little grilled fish, if you want the additional protein.

Ingredients

• Fine sea salt

• 12 ounces dry orecchiette or farfalle

• 1 tablespoon olive oil, plus more for drizzling

• 1 bunch scallions (about 8), trimmed and thinly sliced (keep the whites and greens separate)

• 2 large ears corn, shucked and kernels removed (2 cups kernels)

• ½ teaspoon ground black pepper, more for serving

• 3 tablespoons unsalted butter

• ½ cup grated Parmesan cheese, more to taste

• ⅓ cup torn basil or mint, more for garnish

• ¼ teaspoon red pepper flakes, or to taste

• Fresh lemon juice, as needed

Directions

Bring a large pot of well-salted water to a boil. Cook pasta until 1 minute shy of al dente, according to the package directions. Drain, reserving ½ cup of pasta water.

Meanwhile, heat oil in large sauté pan over medium heat; add scallion whites and a pinch of salt and cook until soft, 3 minutes. Add ¼ cup water and all but ¼ cup corn; simmer until corn is heated through and almost tender, 3 to 5 minutes. Add ¼ teaspoon salt and ¼ teaspoon pepper, transfer to a blender, and purée mixture until smooth, adding a little extra water if needed to get a thick but pourable texture.

Heat the same skillet over high heat. Add butter and let melt. Add reserved ¼ cup corn and cook until tender, 1 to 2 minutes. (It’s OK if the butter browns; that deepens the flavor.) Add the corn purée and cook for 30 seconds to heat and combine the flavors.

Reduce heat to medium. Add pasta and half the reserved pasta cooking water, tossing to coat. Cook for 1 minute, then add a little more of the pasta cooking water if the mixture seems too thick. Stir in ¼ cup of the scallion greens, the Parmesan, the herbs, the red pepper flakes, ¼ teaspoon salt and ¼ teaspoon pepper. Sprinkle with fresh lemon juice to taste. Transfer to warm pasta bowls and garnish with more scallions, herbs, a drizzle of olive oil and black pepper.