Fighting Racism

It's Not OK

Discrimination on the basis of race is odious, but sadly instituted and protected by the law. In New Zealand racism is now institutionalised, so interwoven into the legal and government fabrics that virtually everyone just accepts it. We feel good about it though. It is OK--because it is "positive" racism.

We would wager that few have heard of John Roberts. Adam Smith of Inquiring Mind has kindly pointed us to an article in the New Yorker which profiles Mr Roberts. It is an entertaining read. It is an extensive profile of the Chief Justices of the US Supreme Court. Go one, admit it. You had never heard of him.

One reason you have probably never heard of him is alluded to in the sub-heading of the New Yorker article. It refers to Roberts as the stealth hard-liner. One of the things that caught our attention is Roberts's sterling opposition to racial discrimination in the law--which means largely that he is opposed to using the law for positive racial discrimination.

Apparently Roberts has made a name for himself in breaking with Supreme Court tradition and actually engaging in aggressive inquisitions of plaintiffs. The New Yorker describes just such an interchange when the Justice Department was arguing that laws positively discriminating in favour of blacks in Southern States should be extended.

“I disagree with that, Mr. Chief Justice,” Katyal said. “I think what it represents is that Section 5 is actually working very well—that it provides a deterrent.” According to Katyal, the fact that the Justice Department cleared almost all electoral changes proved, in effect, that the South had been trained, if not totally reformed.

Roberts removed his glasses and stared down at Katyal. “That’s like the old elephant whistle,” he said. “You know, ‘I have this whistle to keep away the elephants.’ You know, well, that’s silly. ‘Well, there are no elephants, so it must work.’ ”

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”

“Absolutely not,” Katyal said.

“When can they—when do they have to stop?”

“Congress here said that twenty-five years was the appropriate reauthorization period.”

“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

And this, ultimately, was the source of Roberts’s frustration—and not just in this case. In a series of decisions in the past four years, the Chief Justice has expressed the view that the time has now passed when the Court should allow systemic remedies for racial discrimination. The previous week, the Court heard a challenge by a group of white firefighters in New Haven who were denied promotions even though they had scored better than black applicants on a test.

Roberts was, if anything, even more belligerent in questioning the lawyer defending the city. “Now, why is this not intentional discrimination?” he asked. “You are going to have to explain that to me again, because there are particular individuals here,” he said. “And they say they didn’t get their jobs because of intentional racial action by the city.” He added, “You maybe don’t care whether it’s Jones or Smith who is not getting the promotion,” he said. “All you care about is who is getting the promotion. All you care about is his race.”

In one opinion on the issue, Roberts wrote (unusually directly for a Supreme Court justice) “It is a sordid business, this divvying us up by race.” In another case, he delivered what is his most famous expression thus far in his tenure as Chief Justice: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In New Zealand we have racial discrimination everywhere. A recent manifestation has been the call for separate Maori seats on the new Auckland Super City council. It is racial discrimination pure and simple. It would place Maori in a privileged position not open to any other race, ethnic group, or people. In Roberts's words, it is a sordid business.

We listened to Maori Party leader, Pita Sharples rationale for separate Maori seats. He observed that Maori were not well represented in local body councils. This justified separate Maori seats, apparently. "We are not getting our fair share," was the implication. Well, work harder like everybody else has to. Stop rent seeking. Don't seek special privilege through the law and through government structures to promote yourselves. Surely you are better than that?

Racial discrimination is now pervasive throughout New Zealand. It is legal. But that does not make it any less sordid, any less degrading, any less divisive, any less destructive, or any less lawful.

Maori talk a lot about mana. They say that it is important to them, and they cannot function well without it. The irony is that the more they agitate and argue for racial discrimination in their favour in pursuit of mana, the more it diminishes. The more they grasp at it by deploying racist arguments and schemes, the more it eludes them. They evidence by these very acts that they actually are inferior, and they themselves believe it. In a perverse way their actions justify racism and racial discrimination. It is an odious business.

Moreover, the wider community is complicit in the promulgation of laws discriminating in favour of Maori. The rest of the community tolerates the racial discrimination and "feels" good about it only because of a deeply prevailing cultural paternalism and racist condescension on its part. Maori has not worked that out yet. It has not worked out how degrading to them such "positive" discrimination actually is.

So, the bottom line is that Maori show they believe in their own inferiority. The rest of the community agrees and condescends to positive discrimination as a superior toward an inferior. The whole sordid edifice is built upon implicit racial denigration, specious appeals to the Treaty of Waitangi notwithstanding.

The wisdom and rectitude of the words of John Roberts, Chief Justice of the US Supreme Court ring out: the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.