A Nation of Minorities: Race, Ethnicity, and Reactionary Colorblindness, 59 Stan. L. Rev. 985 (2007)
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 reconceptualization of race. The ethnic analysis replaced the notion of dominant and subordinate races with a narrative of culturally defined groups in pluralistic competition, where culture rather than systemic racial advantaging or disadvantaging explained disparate group success. This Article demonstrates the foundational role 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, by remaining wedded to mid-century racial orthodoxies, not only failed in the 1970s to respond effectively to the emergence of reactionary colorblindness but contributed to its intellectual legitimacy.