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In the late 1980s and early 1990s, I had the privilege of working on civil rights issues at the U.S. Department of Justice. John Roberts Jr. was the deputy solicitor general in charge of supervising the appellate work of the division in which I worked, and I had frequent contact with him. In terms of character, he was always unfailingly polite, friendly to all regardless of their social identity, position, or power — a person who seemed to truly live by his beliefs in colorblind, gender-blind justice and the moral importance of displaying respect, acknowledging human dignity, and dealing fairly with all. As those beliefs transfer into anti-discrimination law, however, I have grave concerns about the future of this country’s anti-discrimination principles if Roberts is confirmed as a Supreme Court justice. HIS BRIEFS, HIS VIEWS The difference that Roberts will make on the Supreme Court in terms of anti-discrimination law is easily illustrated by comparing his views on anti-discrimination cases with those of Justice Sandra Day O’Connor, whom he would be replacing. Roberts’ views are clear in the many Supreme Court briefs he supervised as deputy solicitor general. Contrary to what Roberts suggested during his confirmation hearings for a seat on the U.S. Court of Appeals for the D.C. Circuit, those briefs — including the one in which he urged the Court to overturn Roe v. Wade (1973) — should be read to reflect his principled views on the law. Even if his internal memos from his days in the solicitor general’s office are not released, the final briefs that Roberts approved are important evidence. In his capacity as second-in-charge in the solicitor general’s office, Roberts held a political appointment of great power. The briefs on which his name appeared reflect his considered and thoughtful use of that power. One of the great benefits of having a decision-making position within the government is that one has the luxury of trying to get the law right. The client for the government lawyer is in many respects “the people” themselves. Government lawyers in a position to decide how to argue their cases thus have the great privilege of acting in accord with their view of the public interest. What Roberts may have argued or written while representing his clients in private practice is subject to the defense that he was merely acting in the best interest of his private clients. But the ethics that applied to him during his time as a government lawyer are different. He had the duty to act in the interests of justice as he saw it. He can and should be held accountable for his views as expressed in the briefs on which his name appears. MISSISSIPPI SEGREGATION One such brief he supervised and approved was filed in the Supreme Court case of United States v. Fordice (1992). (I had no personal involvement in this case; all the facts I discuss are from the published opinions and briefs.) Mississippi had maintained a de jure rule of separate universities for white and black students for years after the Court’s 1954 decision outlawing school segregation in Brown v. Board of Education. Even after a court order in 1962 required Mississippi to admit James Meredith as the first black student in one of the state’s historically white universities, Mississippi’s universities remained starkly segregated in fact. In 1975, black citizens of Mississippi filed a lawsuit complaining that the state continued to maintain a racially segregated system of higher education. At that time, the Justice Department intervened to argue that state officials had failed to satisfy their obligations under the Constitution and federal anti-discrimination law to dismantle the state’s dual system of higher education. For two decades the parties struggled but failed in attempts to resolve the dispute without a court order. In the mid-1980s, the de facto segregation of Mississippi’s colleges and universities remained. More than 99 percent of the state’s white college students attended historically white institutions; the racial composition of its historically black universities ranged from 92 percent to 99 percent black. The white schools offered far superior educational programs, physical facilities, and teacher salaries. Despite these facts, the U.S. District Court entered judgment in favor of the state in 1987. It held that Mississippi had met its duty of dismantling its system of segregated higher education by implementing race-neutral policies for operating colleges and allowing students the “freedom of choice” to attend the school they wished. The United States argued against this position before the District Court. But by the time the case reached the Supreme Court, the United States had changed its position substantially. THE U.S. POSITION Before the Supreme Court, the Justice Department, in a brief supervised and approved by Roberts, backed away from its earlier strong assertions that Mississippi had failed to fully meet its constitutional and federal statutory obligations in dismantling its system of de jure segregation. Instead, the United States now argued that Mississippi’s duty to dismantle its earlier unconstitutional system of segregation extended only to remnants of the segregated system “that affect free choice” of students in deciding where to attend college. The state had used standardized tests in a way that violated the recommendations of the test designers and underestimated black students’ academic potential, and it had maintained duplicate academic programs at white and black schools, thus effectively encouraging continuing segregation. The United States recognized that these matters affected college-bound students’ free choice about which institution to attend. Aside from these two areas, however, the United States argued, “it is no part of the State’s obligation to address the results of private decision making.” Under this rationale, the United States vigorously asserted that there was no connection between the fact that blacks once had no choice but to attend all-black schools and the fact that those schools continued to be almost all black. It further proposed that the state had no “independent obligation flowing from the Constitution to correct disparities between what was provided historically black schools — in terms of funding, programs, facilities and so forth — and what was provided historically white schools.” While admitting that the historically black colleges “share the distinctive trait of a shameful history of inadequate state funding,” the United States nevertheless maintained that the state need not “turn its energies to redressing” this imbalance in spending, provided that it did not interfere with the ability of students today to choose between the better and worse schools, “limited only by ability and not by race.” CONTRAST O’CONNOR In United States v. Fordice, the Court rejected the United States’ position and held that Mississippi must dismantle all policies and practices traceable to its prior dual system that continued to foster segregation. The majority opinion, drafted by Justice Byron White, held that the fact that “college attendance is by choice and not by assignment does not mean that a race-neutral admission policy cures the constitutional violation of a dual system.” Student attendance could be based on many factors, the Court noted, and a number of those factors (including but not restricted to those acknowledged in the government’s brief) could be traced to the state’s prior de jure segregation. Of particular relevance today is the contrast between O’Connor’s concurrence and the United States’ brief. O’Connor’s short concurrence showed her understanding of how historical segregation could taint the current environment. She emphasized the state’s long history of discrimination and “the lost educational and career opportunities and stigmatic harms caused by discriminatory educational systems.” In these circumstances, she argued, the courts should place a very heavy burden on the state to justify any remnants of segregation. That burden should require the state to eliminate any “remnant that unnecessarily continues to foster segregation.” To be sure, the criticisms leveled against O’Connor’s jurisprudence — that she was too pragmatic, too unpredictable as to how she would come out on any given set of facts, not sufficiently guided by a consistent set of principles — have some merit. But sometimes O’Connor’s sensitivity to the present effects of historical discrimination helped ensure that the Court’s anti-discrimination jurisprudence did not retreat into barren formalist assumptions that all is well if the rules appear fair on their face. O’Connor understood why it is simply too easy to argue, as the United States did in its brief supervised by Roberts, that a level playing field of “free choice” suddenly comes into effect once legal barriers enforcing discrimination are removed. As the Senate deliberates on Roberts’ confirmation, it should ask itself, 20 years from now will we as a society be better off with the kind of jurisprudence that would condone the continuation of educationally inferior, virtually all-black colleges — that permits the waste of human potential in ways too similar to tragic and shameful events in our history? Or should we prefer a justice more like O’Connor? — philosophically conservative but far more willing to approach each set of facts anew, to look for and consider, and sometimes to understand and articulate, a jurisprudence capable of remedying the continuing wrongs of past discrimination.
Susan D. Carle is a professor at American University’s Washington College of Law who teaches legal ethics and employment discrimination law. Carle was an appellate attorney in the Justice Department’s Civil Rights Division from 1989 to 1991.

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