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Race, Ethnicity, and Reactionary Colorblindness

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Race, Ethnicity, and Reactionary Colorblindness "A NATION OF MINORITIES": RACE, ETHNICITY, AND REACTIONARY COLORBLINDNESS Ian F. Haney Lopez* Justice Clarence Thomas insists upon "a 'moral and constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality." This asserted congruence between Jim Crow laws and affirmative action seems intellectually indefensible-but it is now a constitutional commonplace, as it underlies the contemporary rise of an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of legal hostility. This Article lays out the intellectual history of "reactionary colorblindness," meaning the current form of race blindness that principally targets affirmative action. Measuring debates among legal elites against a background of evolving racial ideas, this Article traces the use of colorblindness to attack Jim Crow in the years before Brown v. Board of Education, and as a tactic to forestall integration in that decision's immediate wake. It then locates the proximate origins of contemporary colorblindness in the effort by neoconservatives beginning in the 1960s to respond to an emerging structural understanding of racism by positing instead an ethnic reconceptualizationof race. The ethnic analysis replaced the notion of dominant and subordinate races with a narrativeof culturally defined groups in pluralistic competition, where culture rather than systemic racial advantaging or disadvantagingexplained disparate group success. This Article demonstrates the foundationalrole ethnicity played in Justice Lewis Powell's 1978 Bakke opinion, and also shows how his analysis subsequently served as the cornerstone for contemporary colorblind reasoning,evident for instance in Richmond v. Croson. Finally, this Article argues that the liberal legal defenders of affirmative action, * Professor, Boalt Hall School of Law, University of California, Berkeley. I am grateful for the careful attention given to this Article by my Equal Protection and Race seminar, by Devon Carbado and his critical race theory seminar at UCLA's law school, by the participants in a faculty colloquium at Boalt Hall, and by Richard Fallon and Elena Kagan and their public law workshop at Harvard Law School. My thanks also to Jamie Crook for her invaluable help as a research assistant, as well as to the following for their thoughtful contributions to this project: Michelle Anderson, Rick Banks, Steve Bundy, Paulette Caldwell, Phil Frickey, Lani Guinier, Kenneth Karst, Alan Lepp, Ken Mack, john powell, David Sklansky, Norman Spaulding, Steve Sugarman, Brian Tamanaha, and Gerald Torres. My special thanks, finally, to my father, Terrence Haney. 986 STANFORD LAWREVIEW [Vol. 59:985 by remaining wedded to mid-century racial orthodoxies, not only failed in the 1970s to respond effectively to the emergence of reactionarycolorblindness but contributedto its intellectuallegitimacy. INTRODUCTION ................................................................................................ 987 I. COLORBLINDNESS: RADICAL, REACTIONARY, REJECTED ............................ 992 A. The FirstReconstruction ...................................................................... 992 B. Emerging Theories of Race, 1900-1950s.............................................. 996 C. The LiberalArgument for Colorblindness in Brown .......................... 1000 D. The Use and Rejection of Colorblindnessas a Limit on Racial R efo rm ................................................................................................ 100 1 II. FROM RACE TO ETHNICITY ....................................................................... 1004 A. StructuralRacism ............................................................................... 1005 B. Race as Ethnicity ................................................................................ 1006 C. Ethnicity and Early Critiques of Affirmative Action ........................... 1011 III. EARLY LEGAL ARGUMENTS FOR COLORBLINDNESS ............................... 1012 A. Incipient Critiques of Affirmative Action in the Legal Academy ........ 1013 B. Alexander Bickel .................................................................................. 1015 C. RichardPosner ................................................................................... 1017 IV. ETHNICITY AND REACTIONARY COLORBLINDNESS ................................ 1021 A. Ethnicity and AntidiscriminationLaw ................................................ 1022 B. Whites as Vulnerable Minorities......................................................... 1025 C. Formal-Raceand Culture-Race.......................................................... 1028 V . B AKKE ....................................................................................................... 1029 A. Statutory Colorblindness.................................................................... 1029 B. Against Colorblindness....................................................................... 1031 C. A Nation of Minorities ........................................................................ 1034 D. Black Is White, White Is Black............................................................ 1037 E. Integration,Societal Discrimination,and Diversity ........................... 1040 F. Powell, Glazer, and Ethnic Revival..................................................... 1043 VI. CONSTITUTIONAL COLORBLINDNESS ...................................................... 1046 A. Richmond v. Croson ........................................................................... 1047 VII. INEFFECTIVE LIBERAL OPPOSITION TO REACTIONARY COLORBLINDNESS .................................................................................... 1051 A. William Brennan................................................................................. 1051 B. John HartEly and PaulBrest ............................................................. 1055 CONCLUSION ................................................................................................. 1061 February 2007] A NATION OFMINORITIES I believe that there is a moral [and] constitutionalequivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. ... In each instance, it is racialdiscrimination, plain and simple. -Justice Clarence Thomast INTRODUCTION Justice Clarence Thomas's equation of laws designed to subjugate with those intended to foster equality is laughably absurd. "Laws designed to subjugate a race": surely this must include slave law, black codes, and Jim Crow regulations; the doctrine of discovery and the trail of broken treaties; the Chinese exclusion acts, naturalization limited to "white persons," alien land laws, and Japanese internment; and the legal instantiation of Manifest Destiny imposed on the northern half of Mexico, Puerto Rico, and Hawaii. Can Thomas really believe that the limited use of race-conscious means to promote integration constitutes instead another, equivalent instance of racial oppression? This claim merits only derision-but for the fact that it underlies contemporary constitutional antidiscrimination law. Drawing on decisions and reasoning from the 1970s, the Supreme Court in the last three decades has moved ever closer to a full embrace of an 1 anticlassification or colorblind conception of the Equal Protection Clause. Under this approach, much criticized by legal scholars, the Fourteenth Amendment demands the highest level of justification whenever the state employs a racial distinction, irrespective of whether such race-conscious means are advanced to enforce or to ameliorate racial inequality. 2 Contemporary constitutional race law insists on a stark congruence between hostile racial practices on the one hand and efforts to respond to societal discrimination on the other. But when this risible equivalence is stated so baldly, the intellectual problem with contemporary colorblindness is immediately manifest: what t Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240-41 (1995) (Thomas, J., concurring in part and concurring in the judgment) (internal quotation omitted). 1. See, e.g., Johnson v. California, 543 U.S. 499 (2005); Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Rice v. Cayetano, 528 U.S. 495 (2000); Adarand, 515 U.S. 200; Shaw v. Reno, 509 U.S. 630 (1993); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). 2. See, e.g., Adarand, 515 U.S. at 226-27. Many critics of the anticlassification approach argue instead that, properly understood, the Equal Protection Clause targets only those racial practices that contribute to racial hierarchy. The proponents of this antisubordination approach prominently include the following: J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313 (1997); Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection,61 N.Y.U. L. REV. 1003 (1986); Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PuB. AFF. 107 (1976); William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1 (1999); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997); Cass R. Sunstein, The Anticaste Principle,92 MICH. L. REV. 2410 (1994). STANFORD LA W REVIEW [Vol. 59:985 justifies the strict moral and
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