The following is an essay for our Race and the Supreme Court program by Heather Gerken, J. Skelly Wright Professor of Law at Yale Law School, an expert in constitutional law, and a blogger at Balkinization.  Professor Gerken has written extensively on Supreme Court cases involving race, and she is currently working on a book on the concept of “second-order diversity” in American public law.

Now that Justice Kennedy has taken Justice O'Connor's place as the swing vote on the Supreme Court, anyone interested in the future of equal protection needs to think hard about Justice Kennedy's views on race.  Interestingly enough, they seem to be evolving.  Take Kennedy's opinion in the recent school desegregation case, possibly the most important race case the Court has had in a decade.  As many have observed, his position there departed substantially from what he said in prior opinions.

Many people think that Kennedy's new position on race stems from his new position on the Court.  Like his swing-vote predecessors, Justices Powell and O'Connor, Kennedy is feeling the pressure associated with being the middle Justice on a divided Court.  The deep logic of this middle kingdom, so the story goes, pushes for the kind of compromise that each of these Justices has endorsed "“ use race, but don't be obvious about it.  And, indeed, Justice Kennedy's settlement on race in the school desegregation case resembles that of his predecessors.  He deemed obvious and straightforward uses of race illegitimate but left room for schools to pursue their goals through indirect and general means.  He shunned racial balancing while lauding the idea that race contributes to diversity.  The conventional view, in short, is that the story of Justice Kennedy's concurrence is the same story we tell about Justices Powell and O'Connor in earlier cases.

I disagree.  The contours of Kennedy's "settlement" on race are noticeably different from those of Justice Powell's or O'Connor's.  As I detail in an essay in the Harvard Law Review (with an appropriate set of caveats about the risks inherent in speculation that I won't rehash here), the Powell/O'Connor settlement is the compromise of a pragmatist.  Justice Kennedy, in contrast, is an idealist, and his concurrence in the desegregation cases is an idealistic opinion. Further, Kennedy relies on indirect and general race-conscious strategies for different reasons than Powell and O'Connor do.  And while he seems more open to embracing a positive vision of race and thinking about the state's inevitable role in constructing identity, his vision may also be more tied to context and less generalizable across cases.

In my view, the story of Kennedy's opinion in the desegregation cases began not with Bakke or Grutter, but with a voting-rights decision issued the year before in a case called LULAC.  There Justice Kennedy, long hostile to the use of race in redistricting, objected to the dismantling of a majority-minority district on the rather remarkable ground that the Latinos mobilizing there "had found an efficacious political identity."  If anything, LULAC represented a greater departure from Kennedy's prior opinions than his concurrence in the desegregation cases.  It offered a surprisingly sunny vision of race and demonstrated a noteworthy willingness to draw connections between political association and racial identity.

In both LULAC and the desegregation cases, Kennedy traveled a good distance from his prior position as a member of the colorblindness camp.  In the electoral context, Justice Kennedy has gone from believing that race is an artificial identity imposed by the state "” and a destructive one at that "” to insisting that the state must maintain certain racially organized political communities.  In the schools context, Justice Kennedy has moved from subscribing to race neutrality to brainstorming about the most useful race-conscious strategies the state can use to construct the educational space in which students learn about race.

If you lay Kennedy's two most recent race opinions side by side, you also notice something interesting.  The link between these cases is not merely that Justice Kennedy has something new to say about race, but the reason that he does.  In both cases, it is when Kennedy stops talking directly about race that he manages to say something new about it.   In describing the voting-rights claims of Latinos in LULAC, Justice Kennedy tells the story he has long associated with the electoral arena, one having to do with political agency and expression rather than equality.  He speaks in the cadence of the First Amendment, not the Fourteenth.  Similarly, in evaluating the equal protection claims raised in the school desegregation cases, the novel parts of Kennedy's opinion (the bits and pieces of his concurrence that do not follow easily from his prior opinions) focus not on race, but on a story he has long associated with public schools "“ the exceptional role that schools play in inculcating civic morality.  One could eliminate all references to race in both opinions and the underlying stories would still make sense.

It is thus when Justice Kennedy gets caught up in a stirring story about what Robert Post might call a "constitutional domain" that he ends up telling a richer, more nuanced tale about race.  In both cases, the story Justice Kennedy associates with the relevant domain serves as a lens.  It directs his attention away from his usual narrative about race toward the values he otherwise associates with each domain.  Kennedy has long recognized that the political sphere involves robust associational and expressive dimensions, but now he sees how those values connect to racial politics.  Kennedy has long thought of schools as institutions for teaching students to be citizens, but now he sees that those lessons extend to interracial relations.

What do we make of the fact that not talking directly about race has helped Justice Kennedy say something new about it?  I believe it has to do with the idea of displacement as a source of power, a phrase Shakespeare scholar Stephen Greenblatt once used to explain why writing about Macbeth helped him think more clearly about Iraq.  Perhaps we should not be surprised that displacement has served a useful function for Justice Kennedy in the context of race.  Lani Guinier has written that race is a "neon light" that can attract our attention away from the real source of the problem.  By averting his eyes from the neon light in these two cases, Justice Kennedy sees something different from his usual story about race.

In suggesting that displacement can sometimes be a source of power "“ an opportunity for constitutional growth rather than psychological avoidance "“ I do not mean to endorse the Powell/O'Connor settlement on race.  Those two Justices worried that transparent, obvious uses of race reinforce racial categories.  But I find it hard to believe that avoiding the subject of race makes race go away.   The notion seems degrading at some level, as if we equate race talk with talking about sex or one's alcoholic uncle.  But there may be a more nuanced way to think about displacement.

What if, like Kennedy, we began with the story of the domain "“ schools, the marketplace, democracy — rather than with the story of race?  Most of us already think we know the story of race.  We tell the same story no matter what the context.  Perhaps, like Kennedy, we might see something different if we told the story differently.  Every domain has an overarching narrative. What if we tried to fit the story of race into the story of the domain rather than vice versa?

This is all a bit abstract, so here's a concrete example.  As Pam Karlan has observed, one of the dominant stories lawyers tell about race depicts racial minorities as "objects of judicial solicitude" rather than "efficacious political actors in their own right."  And lawyers routinely transfer that one-size-fits-all story into the electoral domain.  For instance, they fold majority-minority districts into whatever variant of the conventional story they prefer.  Liberals tend to view majority-minority districts as a race-conscious strategy for integrating the legislature.  Conservatives generally see them as yet another example of what they think of as hand-outs, akin to affirmative action or minority business set-asides.

Election law scholars, in sharp contrast, tend to see racial minorities as they see other groups in the political system "“ as "efficacious political actors" rather than "objects of judicial solicitude."  They also tend to tell a distinctive story about race and redistricting, one that envisions districts as a means of empowering racial minorities to advance their own cause (I cite a lovely example in a piece by Pam Karlan and Sam Issacharoff in the article linked above).  Election law scholars tend to tell this story precisely because they are so enmeshed in their field.  Whereas most scholars cannot help but think of the electoral domain as yet another story about race, election law scholars cannot help but see race as yet another story about the electoral domain.  And by focusing on the domain rather than race per se, they end up telling a distinctive tale about equal protection.

Here, then, is a vision of displacement as a source of power in the context of race.  The Powell/O'Connor story is about not talking about race (or at least not appearing to talk about it).  My vision of displacement involves talking about race, but anchoring it within the appropriate context.

Justice Kennedy's recent race decisions invite us to abandon our monolithic stories about race and think about equal protection in domain-centered terms.  I, for one, welcome the invitation.  We have been having the same debate about race for a very long time.  And if Justice Kennedy can find something new to say about race, perhaps so can we.

Posted in Race and the Supreme Court