In reading it, I was struck by a couple of things. One was his focus on race (in the guise of removing our focus on race), and the second his deference to power.
In his desire to remove our nation's focus on race, Justice Roberts has sided against laws that uphold quotas or similar means to address racial inequalities. In a statement guaranteed to be widely quoted (out of context and likely turned into a cliche, but really amounts to a tautology), Roberts observed “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But even while challenging the laws that attempt to address past and current racial inequities, Justice Roberts himself ignores context. While it is true that most attempts at rectifying the results of discrimination end up imposing discrimination, concentrating on those ignores the initial causes of inequality - namely, the often implicit discrimination that exists in our society. Are you poor? You are most likely black or minority. Is your father in jail? Again, you are most likely black. Is your local school overcrowded, with poor teacher retention and dismal graduation rates?
We might do well to do away with explicit racial quotas on hiring and college school attendance. In 'Outliers', Malcolm Gladwell cites a study that followed those who attended law school and looked at the outcome. Did those who got in under quota (perhaps with less preparation than some passed over peers) under perform after? The answer was 'No.' In many things, after a certain threshold has been crossed, all can equally receive the training and education with similar results, thus leading to ideas of a lottery. We can't with precision determine who will succeed and who won't, so perhaps we shouldn't try, and let the individuals themselves decide. Of course, there are those who put forward extreme preparation that might be passed over, but since we can't adequately measure and predict, we aren't really doing anyone a disservice. Plus, our college educated ranks should more closely resemble the ratios of race in the population.
Of more concern to me is Justice Roberts deference to power and existing power structures. Jeffrey Toobin writes:
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
As I've observed elsewhere, individuals can rarely do as much damage as groups, and perhaps our most egregious violators are our nation's corporations, often acting without regard to safety, social needs, or respect for the long term environment.
But I'm not a lawyer. So what concerns me most about Roberts' view is not that he may be wrong, but that he may actually be right - That his interpretation of our nation's laws is consistent with the intent of our nation's laws. For over 200 years the common individual of America has been fighting against entrenched power, has been fighting for the right to live and excel on their own merits, has been fighting to be free from exploitation by powerful controlling groups. And again and again, fearful that if the masses have the same opportunities, the same privileges, that they will undermine the powerful, laws have been passed and judgments made that keep power in the hands of the few. Although there are anecdotal stories about 'self-made men', vastly more common is the 'success' of those who started out with money, privilege, and advantage.
Between our laws and a sympathetic Chief Justice, it is likely to remain that way.
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