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Holder vs. Roberts



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Attorney General Eric Holder criticized Chief Justice John Roberts in a commencement speech a few days ago.

Chief Justice John Roberts has argued that the path to ending racial discrimination is to give less consideration to the issue of race altogether. This presupposes that racial discrimination is at a sufficiently low ebb that it doesn’t need to be actively confronted. In its most obvious forms, it might be. But discrimination does not always come in the form of a hateful epithet or a Jim Crow-like statute.

And so we must continue to take account of racial inequality, especially in its less obvious forms, and actively discuss ways to combat it. As Supreme Court Justice Sonia Sotomayor wrote recently in an insightful dissent in the Michigan college admissions case, we must not “wish away, rather than confront, the racial inequality that exists in our society. . . . The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.”

Hans Bader points out that Holder’s paraphrase changes Roberts’s meaning.

Holder replaced Roberts’ actual admonition “to stop discriminating on the basis of race” with a quite different admonition to “give less consideration to the issue of race.” These are quite different things. Indeed, for an institution plagued by racism to “stop discriminating on the basis of race,” it may need to become vigilant about preventing such discrimination by racist employees, and focus more on racial problems and issues.

Also, Roberts’s argument does not presuppose “that racial discrimination is at a sufficiently low ebb that it doesn’t need to be actively confronted.” The point of the argument is that it is wrong to engage in racial discrimination as a way of confronting racial discrimination. Sotomayor’s retort to Roberts, which so impresses Holder, strikes me as a rhetorical failure. Speaking “openly and candidly on the subject of race” is not a proposal in actual opposition to Roberts’s (we have no reason to think that Roberts is against open and candid talk), and also one that will have only an indirect effect on racial discrimination — at best.



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