The Judges and Judicial Rulings at the Heart of Wokeness

Analysts Eric Kaufmann and Zach Goldberg mark the birth of wokeness at around the mid-2010s. Each point to survey datashowing a majority of white liberals for the first time during this period agreeing with statements like black inequality is caused by white oppression, and generally expressing more positive sentiments towards minorities than their own racial group. They describe these changes as marking a cultural shift in America, at least among the country’s progressives.

Others like Christopher Caldwell and Richard Hanania say this shift is simply a reflection of existing civil rights law, and that much of what we call wokeness today (i.e. emphasizing racial identity and group entitlement over individual merits, or equality of results over opportunity, etc.) is actually traceable to 1964’s Civil Rights Act. It’s an interesting observation for several reasons, not least because it seems to reverse well-known maxims like law and politics is downstream from culture or that law cannot change hearts. It also points to wokeness being more of a top-down social revolution, rather than a natural phenomenon.

To add to their general position, it really is federal judges from this era in particular who are most responsible for wokeness—ironically enough, judges who are dead, white, and male, for the most part. Through acclaim- and compromise-seeking judicial rulings, judges on both the left and right took the duly passed Civil Rights Act of 1964 and immediately began stretching it into areas not at all contemplated by Congress. Among their most daring rulings, one indeed finds all the themes and doctrines found in today’s woke liturgy—In addition to the overblown rhetoric and unsupported factual assertions that so often accompanies it.

Making this specific connection between wokeness and Civil Rights era judges is helpful. By doing so, we have specific, nameable people and acts to identify and assign responsibility to. And to know exactly where and when wokeness originated makes for a better understanding of how it could have all been averted.

Colorblind Civil Rights v. Woke Civil Rights

At the root of wokeness is the 1954 decision of Brown v. Board of Education of Topeka. Or, rather the abuse of it. In a highly constitutionally-suspect decision (it contained no footnotes, case references and, as Caldwell notes in his 2020 book The Age of Entitlement, “each of its two parts ran about the length of a newspaper column”), the Supreme Court in Brown unanimously held that laws in certain southern states assigning kids to schools based on race (that is, the “separate, but equal” doctrine adopted in Plessy v. Ferguson) were in violation of the Fourteenth Amendment’s Equal Protection Clause. By banning racial discrimination in school placements full stop, Brown was understood and celebrated at the time as a ruling which finally and fully entrenched colorblindness in American society.

While southern segregation laws did end there, as the recently deceased UT-Austin law professor Lino Graglia has written, because of the lack of racial integration found elsewhere in society (and not just in the South), Brown came to be seen by some “not as a triumph but as something of a disappointment, and its prohibition of discrimination as an obstacle rather than an aid to racial equality.” He cites progressive law scholars who have claimed that, if left as is, Brown’s colorblindness principle would have “obstructed the goal of equal achievement” and “imped[ed] efforts to dismantle old racial hierarchies.” Just like the woke today, progressives before them wanted something “more” than mere colorblindness in society and our legal system.

And almost immediately after the Civil Rights Act was passed, they got their wish. The 1968 decision of Green v. New Kent County dealt with two Virginia schools, Watkins in the west, formerly for blacks, and New Kent in the east, formerly for whites, and a residentially integrated population. These and many schools like them had desegregated years before, basing admission on freedom-of-choice—when the case was brought, no whites chose Watkins, and just 15 percent of the blacks chose New Kent.

But while Brown ensured school desegregation nationwide, the Supreme Court in Green held that this was not enough where “insufficient integration” persisted. What they ordered was that states had to go a step further, and create and implement plans integrating their school district’s populations.

So, Green-opinion author Justice William Brennan was adding to Brown. Nowhere in his opinion, however, did he actually admit it. Instead of expressly altering Brown, Brennan stealthily redefined its elimination of unconstitutional segregation as somehow requiring the dismantling of so-called “dual school systems.” These were schools exhibiting racial “imbalance” not because of segregation laws (which, of course, were gone), but because of time-lag, residential patterns, or freedom of choice. What Green did then was move from prohibiting segregation to actually requiring integration, but while still claiming to be only enforcing Brown.

Needless to say, this was a profound expansion of Brown. Casting forced integration as being part of Brown’s desegregation requirement was done, says Graglia, in order for Brennan to avoid having to actually explain the constitutional foundation of such a move, or the social benefits that were to be expected. It was ends-driven, sleight of hand, in other words.

Interestingly, according to legal scholar Bernard Schwartz, when newly Nixon-appointed Chief Justice Warren Burger later sought to actually define the segregation principle as articulated in Brown in the follow-up forced-busing case of Swann v. Charlotte-Mecklenburg Board of Education, Brennan reacted fiercely and pushed (successfully) to make it as vague (and malleable) as possible—something we see a lot from the woke today, of course, from the airy deployment of “social justice”, “fascism”, and “racism”, to assertions that Critical Race Theory isn’t being taughtin schools or that, when it is, it’s simply concerned with “teaching about the past.” As Lord Henry Wotton said in Oscar Wilde’s The Picture of Dorian Gray, “to define is to limit”, and Brennan’s weaponized ambiguity in these cases (aided by Burger’s capitulation in Swann) should be seen as a giant first step in the Civil Rights Act’s woke expansion.

From Compelled Desegregation to Compelled Discrimination

Ironically, says Graglia, what was really being added to Brown was not just a supposed constitutional requirement of racial integration but, in actuality, a license to racial discriminate. As he writes, the Swann Court:

created a hardly credible constitutional requirement that public school children be excluded from their neighborhood schools and be transported to more distant schools because of their race in an effort to make the schools more racially integrated than the neighborhoods in which the children live and, specifically, to disperse black students, to the extent possible…

In other words, “too many” whites in one area meant federal courts now had a license to hijack local school boards and dramatically cull basic freedoms.

Needless to say, judicial orders to create “perfect racial balance” in schools militated against the Fourteenth Amendment’s general prohibition against racial classifications as well as the First Amendment’s implied right to freedom of association. It also led to absurd results. Just like the injection of Critical Race Theory in schools today pushes parents into choosing homeschooling, forced-busing would push them to move out of the cities and into suburbs instead.

What all these cases absurdly did, writes Graglia—others being Carter v. West Feliciana Parish School Board and Alexander v. Holmes County Board of Education—was find school districts in violation of the Constitution not when they practiced racial discrimination, but when they did not. By going from compulsory segregation, pre-Brown, to compulsory integration, post-Green, we had almost immediately returned back to a system of racial classification.

From Schools and Beyond

Even for those who do not know the history of civil-rights jurisprudence, you can see where this goes next. Equating a requirement for racial integration with one for legal desegregation, of course, simply cannot be done. The latter is far more limited, while the former stretches out to as far as eliminating imbalance or disparities. But once Brennan’s wishes became entrenched in law, any system that permitted people to exercise their own association rights, but where “imbalance” persists, became legally suspect and thoroughly scrutinized by a growing civil-rights-enforcement apparatus. As Caldwell writes, between the mid-sixties and Bush I/Clinton era (when banks were forced to lower lending standards in order to increase minority homeownership), “all separation was prima facie evidence of inequality” and “any inequality was an injustice”; an injustice which “did not need a clear account of what had caused it to demand redress from the system.” In other words, it was the “systemic discrimination” we have today, where disparities are discrimination, full stop.

And to get rid of such disparities, we perversely needed more discrimination. When legal activists in the 1971 case of Carter v. Gallagher pointed to a mismatch between the racial background of Minnesota’s fire department employees and it’s black population, the full court of the Eighth Circuit instituted a requirement for the department to make 20 new black hires. When city defendants rightly claimed this was a quota, the lead judge remarkably said they were wrong, “because [when] fully implemented, all hiring will be on a racially nondiscriminatory basis.”

Around this same period, the Supreme Court in Griggs v. Duke Power barred a coal-fired power plant from offering aptitude tests to employees due to test results having a “disparate impact” on minority ones. As the Court ruled: “Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operated as ‘built-in headwinds’ for minority groups.” In other words, if minorities performed poorly vis-à-vis whites, the latter’s test-results had to be scrapped. The post-civil rights requirement of racial discrimination (rather than its prohibition) was now expanding and becoming more and more normalized.

Another stand-out case from this year was Contractors Association of East Pennsylvania v. Department of Labor in which black-hiring mandates for federal contractors were upheld simply because they helped “overcome existing evils.”

To confirm, none of these decisions squared with a strict reading of the Civil Rights Act of 1964. As Caldwell writes: “White Americans wanted to believe that the new constitution [how he deftly refers to the Civil Rights Act] tended toward race-neutrality and toward freedom, just as the old one had.” But to the contrary, he says, “as those who administered it understood almost immediately, it tended toward race-consciousness and government direction.” As we’ll see, this tendency did not stop.

Bakke v. Regents of University of California 

In the landmark case of Bakke v. Regents of University of California, a white, Vietnam vet and NASA engineer sought to have UC-Davis’s minority quotas on medical school placements blocked after he was rejected in 1973. The resulting decision was one of the most nonsensical in Supreme Court history.

Bakke was a highly fraught decision and based on 4-4-1 split, with the ‘1’ being the tie-breaking, controlling opinion penned by Justice Lewis Powell. The Nixon-appointed Powell avoided Justices Rehnquist, Stewart, Stevens, and Burger who ruled in their minority opinion that any racial preferences in university admissions were violations of the Fourteenth Amendment’s Equal Protection Clause. In their own opinion, Justices Brennan, Blackmun, White, and half-black Marshall (the “Brennan Four”) held that preferential admissions policies intended to remedy the “lingering effects of past discrimination” (that is, where the applicant only needed to be part of a group with a history of having been “isolated from the mainstream of American life”) do indeed pass Fourteen Amendment muster.

Powell joined the Brennan Four in finding racial preferences constitutional. His reasoning, however, was not based on remedying ultra-vague “lingering effects”, but for ensuring racial “diversity” instead—the costs and benefits of which he failed to discuss. From the perspective of university administrators at UC-Davis and across the land, it was a distinction without a difference.

Powell further “deviated” from the Brennan Four by finding racial quotas barred by the Constitution, but that using race as a “plus-factor” was not. In his book, Caldwell points to progressive legal philosopher Ronald Dworkin who observed at the time that these two mechanisms “are only different means of enforcing the same fundamental classifications… In principle, they affect a white applicant in exactly the same way—by reducing his overall chances.” Yet again, it was distinction without a difference.

Putting this part of the case in its contemporary context, Caldwell further writes that up until Bakke, affirmative action “had at least been morally intelligible to a broad public: It sought to atone and compensate for slavery and Jim Crow.” But this rationale was altered with Bakke, which, he says, made racial preferences remedy not past, but “presentdiscrimination”—present discrimination being what the charge of “insufficient diversity” basically entails. “If there was no evidence of such discrimination, it could only be because the whites who held power were hiding it. They were practicing racism deviously, underhandedly—or, at the very least, unwittingly.” Here again we have the “systemic racism” of today.

The supposed lingering effects or “vestiges” of black slavery and Jim Crow, of course, informs the recently accelerated discussionover black reparations—an idea now with big support among woke whites. While Bakke failed by just one vote to make the basing of racial preferences on “lingering effects” the law of the land, the Brennan Four along with Powell’s general approval of anti-white discrimination in university admissions (plus the conclusory assumption of diversity’s net benefits) has no doubt done much to solidify these areas as legitimate justifications for so much that we see today. And more broadly, the Brennan Four along with Powell have no doubt done much to seal the black monopoly over moral authority vis-à-vis white America. This was, of course, far more than most whites who supported the Civil Rights Act bargained for. As Caldwell writes about Bakke: “This was not the glorious role white Americans had envisioned for themselves when they came bearing what they saw as the gift of civil rights in 1964.”

The decision’s also notable for containing certain affirmations and general language seemingly ripped from today’s woke liturgy. As some of the Brennan Four stated in collective and separate opinions: “In order to get beyond racism, we must first take account of race”; “to treat some persons equally, we must treat them differently”; and, “[w]e cannot — we dare not — let the Equal Protection Clause perpetuate racial supremacy.” And just like so many hack critics today, they tore into the “hypocrisy” of “All Men are Created Equal” from the preamble of the Declaration of Independence—also failing to mention, of course, the many enslaved and voteless white males who were here before and after it’s drafting.

Elsewhere, there was sheer delusion; an oft-seen feature among today’s woke, let’s be honest. Mr. Bakke’s entrance scores were in the 97th percentile, while minorities were getting admitted with scores in the 18th. But according to Justice Marshall: “The Davis program does not simply advance less qualified applicants; rather, it compensates applicants, who it is uncontested are fully qualified to study medicine.” (emphasis mine).

Again, absolutely none of this can be squared with the Civil Rights Act of 1964 (let alone the Constitution); it was pure judicial activism.

Things Could Have Been Different 

Nothing perhaps makes clearer the dangers of myopic decision-making and compromising on principles than America’s post-war, civil-rights jurisprudence. Justice Powell’s impoverished attempt to appease both sides, for instance, led to jubilation among the never-compromising left. At the time, progressive law professor Paul Freund called his decision “fuzzy”, which was a “a good thing”, he said, because it “leaves room for development.” Elsewhere, the National Urban League’s Vernon Jordan said it signaled a “green light to go forward with [other] affirmative-action programs.” Instead of Powell taking the “middle way” as he did in Bakke (and so often elsewhere, says Graglia), how much would have affirmative action—now in every facet of American life today—, or it’s vague justifications, been dissipated today had he exercised more foresight and joined the other four judges?

As for Burger, while perhaps a dissent from him in Swann may have opened things up to an even worse 8-1 decision (although it’s hard to imagine a worse order than forced-busing), in Graglia’s words, it could have “served to alert the nation to the fact that something very different and much more important was happening than the enforcement of Brown on a recalcitrant southern school district.”

The results have, of course, been disastrous. Caldwell in his book even makes the claim that the Civil Rights Act and the litigation apparatus it spawned kicked off the political correctness movement. In order to blunt the new fear of civil rights litigation, he says, universities, for instance, put in place things like speech codes and disciplinary hearings for recalcitrant staff and students, while the corporate world adopted diversity-hiring policies and conspicuous social philanthropy. In other words, it was the Civil Rights era that gave us today’s woke totalitarianism. It’s a tall, but pretty airtight claim. And as shown, it was dead, male, and mostly white federal judges who were most responsible.

Unsurprisingly perhaps, it was around this time in the early ‘70s that paleo-libertarian grandee Murray Rothbard ridiculed modern conservatives for ceding the areas of morality, justice, and idealism to the left. As he said during a conference address, all which conservatives can muster was to challenge the left on the “impracticality” of their ideals while “clinging to the existing status quo.” But “having staked [everything] on the seemingly firm ground of the ‘practical’… that is, the status quo”, conservatives are “doomed to lose, as the status quo moves further in the left direction.” This ceding of moral ground was especially visible in discussions over equality, he noted, even in the face of the “most bizarre egalitarian programs.”

Not much has changed, of course. Conservatives and centrist liberals today fight the manifestations of wokeness by claiming proposals like reparations are, again, unworkable. Elsewhere, they mostly condemn woke movements like Black Lives Matter simply for its use of violence, rather than the two-tiered racial society it demands. Or, they unhelpfully mock woke corporations for apparently not knowing what they’re doing (i.e. “if you go woke, you go broke”).

But the moral repugnancy of things like racially discriminatory programs should be clear enough and easy to translate into effective advocacy. Thomas Sowell already broadly set the tone years ago when he asked rhetorically: “Have we reached the ultimate stage of absurdity where some people are held responsible for things that happened before they were born, while other people are not held responsible for what they themselves are doing today?”

So, for conservatives to form a real bulwark against woke civil rights, they must stop ceding moral ground and challenge the left’s monopoly on moral authority. This means pushing the discussion away from the left’s macro-level talk about disparities and raising micro-level personal experiences instead. This could take the form of raising real stories about what being passed-up for jobs and promotions does to marriages and families. Or stories about what being denied a school spot does to parents who spent so much time and money on their kids’ future. Or raising what happens to one’s personal health and well-being when the anguish of having a well-earned opportunity taken away from them is not only dismissed, but even used as a source of their own personal blame.

The post The Judges and Judicial Rulings at the Heart of Wokeness appeared first on LewRockwell.

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