Justice Kennedy and Displacement as a Source of Power

Heather K. Gerken

As the first Supreme Court argument of the Term approaches, there has been a lot of discussion about Justice Kennedy's new position as a swing vote and his softened stance on race in last Term's desegregation cases. As I noted yesterday, the quickly emerging explanation for Justice Kennedy's concurrence is that it was just another version of Justice Powell's concurrence in Bakke or Justice O'Connor's opinion in Grutter. Many read it as an effort by the middle Justice to split the difference between the two camps in the colorblindness debate, allowing states to use race as long as they are not obvious about it. Closely analyzing Kennedy's two most recent race opinions, I offer a quite different explanation, detailed here. In my view, the contours of Kennedy’s "settlement" on race are discernibly different than those of the Powell/O'Connor compromise.

What is most interesting about these two opinions is that Kennedy seems to say something new about race precisely when he is not talking directly about it. It is when Justice Kennedy gets caught up in a story of the domain -- a stirring tale of electoral engagement in a voting-rights case, a heartening story about teaching students to be citizens in the desegregation cases -- that he ends up saying something different about race than he's said in prior opinions.

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.

It is difficult, of course, to resist calls for more attention to context. Who wants to take a stand against precision? But one might reasonably worry that a domain-centered approach will result in a set of stories about race so disjointed that we miss the overarching themes uniting them. I nonetheless think it is possible to use a domain-centered narrative to break down a monolithic vision of race without creating an equal protection jurisprudence so radically contextualized that nothing is generalizable. There is a considerable distance between thinking of race as a puzzle with many pieces and insisting those pieces bear no connection to one another.

Thus, I read Justice Kennedy's opinion in the desegregation cases as an invitation to abandon our monolithic story about race. I, for one, welcome that invitation, and that is not merely because I am grateful to Justice Kennedy for declining to join the Chief Justice's deeply mistaken interpretation of Brown. The debate between Roberts and the dissenters in the desegregation cases is one we have been having for a very long time. Perhaps it is time to shift the terrain. If Justice Kennedy can find something new to say, maybe so can we.
Posted 9:52 AM by Heather K. Gerken [link]