I Know Thurgood Marshall, and John Roberts Is…

Commenting in defense of grandfather clauses that help to perpetuate previously racist admissions policies and John Roberts’s empty formalism in Parents Involved, David Nieporent asserts:

And both you and Stevens might want to review Marshall’s arguments in Brown. He explicitly explained to the Court that the purpose was to end race-concious decisionmaking, not to (to use the current parlance) promote “diversity.”

This is rather puzzling (except insofar that it’s true that Marshall didn’t think much of the diversity justification per se; my post specifically said that diversity was not the only reason to reject formalism.) I don’t see anything in either Marshall’s oral argument and certainly nothing in Warren’s famously narrow opinion in Brown that leads one to believe that race can no longer be considered in school admissions or that racial classifications designed to promote integration are the equivalent of racial classifications that promote apartheid or stigmatize some races as inferior. Certainly, the forceful way in which Warren and Marshall interpreted Brown with respect to the formally race-neutral (but in practice discriminatory) policies many school boards developed in its wake doesn’t suggest that they find Roberts’s crude tautologies to be a very useful way of proceeding. Stevens’s interpretation of Brown is obviously far more accurate.

As for what Marshall thought about the equivalence of affirmative action and Jim Crow, well, I happen to have Thurgood Marshall right here, and:

For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

[…]

I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society’s discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors.

I know you’re shocked that a progressive African American lawyer who litigated death penalty cases during Jim Crow didn’t think that affirmative action was equivalent to Jim Crow. But, in fact, Marshall didn’t think that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”; rather, he much more plausibly agreed that “In order to get beyond racism, we must first take account of race. There is no other way.”