Much of the coverage of this appointment has focused on an odd quote where Kelly compares affirmative action to slavery. “Affirmative action and slavery differ, obviously, in significant ways,” Kelly wrote in a book chapter the new justice included in his application to sit on the state’s highest court. “But it’s more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same.”
In fairness, the idea that slavery and affirmative action are morally similar is not an especially radical view when compared to the views of many other conservative jurists. American slavery involved the subjugation of an entire race of people, while affirmative action is an effort to remedy past racial injustices, but many conservatives — including Chief Justice John Roberts — do not draw a distinction between effort to roster racial inequality and race-conscious efforts to ameliorate it.
But Kelly’s comparison between slavery and affirmative action does not even mention race. Instead, it tars them both as violations of the “principle that it is acceptable to force someone into an unwanted economic relationship.”
It's a very odd statement, in no small part because Kelly does not appear to understand what affirmative action is. In most cases, affirmative action is a voluntary program where business, universities, or other entities take steps to diversify their workforce or student body. In Fisher v. University of Texas as Austin, for example, which the Supreme Court recently decided, the University of Texas wanted to enter into economic relationships with more black and Latino students, and the black and Latino students themselves wanted to enter into an economic relationship with the university.
Had the plaintiff challenging affirmative action in Fisher prevailed, the university would have effectively been forced to enter into an economic relationship with more white students (that is, by accepting them into the freshman class), despite its preference for accepting more people of color. So Kelly's claim about an "unwanted economic relationship" makes no sense.
More importantly, however, if Kelly were actually correct that there is some "foundational principle" that prohibits the state from requiring someone to enter "into an unwanted economic relationship," then most American civil rights, labor and employment law would need to vanish. Minimum wage laws require employers to enter into an economic relationship where workers are paid a certain amount, despite the employer's preference to enter into a different relationship where the workers are paid less. Anti-discrimination laws require employers to hire African-Americans, women, or other groups that the employer might despise. The federal ban on whites-only lunch counters forces restaurants to enter into an economic relationship by selling meals to customers the restaurant would prefer not to serve.
Indeed, while Kelly's unusual view of "foundational principles" is emphatically not what the law requires, there was a time about a century ago when Kelly's views dominated the Supreme Court of the United States. In its since-overruled 1908 decision in Adair v. United States, the Supreme Court held that "it is not within the functions of government . . .to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another." Kelly's statement about unwanted economic relationships is largely just a restatement of this conclusion in Adair.
Notably, Adair held specifically that employers may forbid their employees from unionizing -- potentially under pain of termination. Given Gov. Walker's well-known hostility towards unions, that may explain why he chose this obscure lawyer with highly idiosyncratic views for Wisconsin's highest court.
Author: Ian Millhiser