[The term ended with a bang ... after the school cases were decided ... with a surprising change of heart in the detainee cases. The justices now will hear -- with broadly drawn questions to consider -- an appeal to rulings that upheld stripping habeas appeals to those in Gitmo. Very good, but still more time will pass, which would be unfortunate even if there are at least five votes to overturn. Meanwhile, they will rot some more, and our nation will be shamed ever more. Be nice if Congress did their job and underlined that statutory habeas is not stripped by overturning the Military Commissions Act of 2006.]
More on the school choice ruling from moi.
A lot can and was said about the ruling but a few things do come to mind. First, once you read the opinions, you do get a sense about how bogus it is in various respects. I just love the "originalist" reading of Brown, where CJ Roberts quotes a co-counsel as well as the opinion itself to show that the plurality's reading is really just following the "founding" approach.
The fact that Thurgood Marshall and the justices in the majority (Brennan came on the Court soon after) understood Brown soon enough as more than just a mere case of avoiding state mandated segregation is simply ignored. It just rankles when one reads such claims, underlining the ultimate fiction of all too many "originalist" thinkers. It also underlines how law changes and develops as situations change, the focus on blatant legal segregation changing to harder questions as times went on. Another flaw with overly strict original understanding that centers only on the founding years.
[Some might challenge what I say here by pointing to the holding of the opinion of the Court, which leaves open -- if they go through hoops that would satisfy Kennedy -- the possibility that a narrowly drawn program would be acceptable. Sorry to say, I don't quite think that is the primary message sent here. See also the first comment to one of these "the ruling is really narrow" arguments.]
Push comes to shove, it underlines the failure of this brand of appointment. It very well might be appropriate, especially given electoral choices, that we have an ebb to some extent of the judicial ideology of the 1960s. But, it should be done honestly. This ruling was just one case (ditto the abortion ruling) where the new Court was not honest. They did not forthrightly overturn past precedent, but did so sub silento. In effect, do what Scalia/Thomas* favors, but with a bit more of a happy face. This btw is often better for their purposes, since it is less blunt (causes less trouble), and harder to attack. It is not unprincipled for conservatives to be judicial activists when it suits their ideology -- they get paid to do things after all -- but it is hard to take when their supporters whine about "activism" as if it is only what "liberals" do.
The activism here is toward a certain understanding of "equal protection." The choice is made, but you wouldn't know it from the opinion.** The Constitution does not say "color blind." It says "equal protection of the law." Both blacks and whites are treated equally here. [All students take part in a program where race is a factor ... to promote a more diverse system for them all.] Yes, that sort of test was used in the 1880s to uphold miscegenation laws (both blacks and whites couldn't marry the opposite race).
But, the point of such laws was obvious -- the races were meant to be apart, and social race mixing was immoral and dangerous. To equalize this to bringing the races together in public schools, the institution in place to adequate the citizenry as a whole in the first place not only aspects of them, is fictional. Furthermore, what if the true path to equality was being in this together? Would not such programs promote "equal protection," and thus be legitimate? And, many precedents and common understanding underline the point. Equal protection was in place to guard against malicious (invidious) action.
Sometimes, it was remarked that use of race by itself was problematic. But, race was used to help repeatedly. Life was racial conscious in this fashion, and the courts did not strike it down be it in handing out jobs to disadvantaged groups, drawing electoral lines, or nominating various officials (and judges). It was arguable if in some sense this sort of thing was mandated by the Constitution. In some fashion, especially given past history, it probably was. But, even if it was not to be mandated by court action -- that was left to school systems and the like blatantly legally segregated -- this surely didn't mean it was barred.
Ditto guards against de facto segregation ... putting aside the fact it was likely in some fashion mixed in with state action. On this point, the majority -- see the original comments linked and cites therein -- is woefully wrong. It also underlines how this brand of justice is not even too satisfactory on a "balancing out excesses of the past" basis. Justice Thomas loves to rail against use of the courts as oversight boards over institutions deemed constitutionally infirm. And, many thought federal judges went too far trying to deal with school segregation, especially when the districts weren't directly segregating any more (as if this was necessary for malign neglect). I'm not sure why this makes voluntary local action a problem. Clearly, too "activist" courts is not the only concern here.
But, in a fashion, this irony is not too surprising. In fact, it has a well worn feeling to it. The Fourteenth Amendment was enacted to give the feds (especially Congress -- see @5 -- but the courts too, as a sort of fallback) more power and responsibility to enforce national rights, specifically equality. And, some efforts were carried forth by the Reconstruction Congress and Grant Administration. Unfortunately, all too many of these efforts were deemed unconstitutional, including via the Civil Rights Cases. Likewise, the federal courts neglected the rights of the newly freed slaves, taking their lead from changing national priorities. The executive and legislative action was deemed not only optional -- not compelled by the Constitution -- but unconstitutional! Some of these cases, hard as it is to believe, are still good law.
Such things suggest why Justice Breyer's dissent was so bitter. Breyer naturally favors -- when it is deemed proper (cf. religious voucher plans) -- legislative flexibility. Thus, his support for sentencing guidelines with large amounts of judicial flexibility, including judicial fact finding (Sixth Amendment be damned). We should not be surprised, therefore, his dissent has a few heart-felt cries from the heart almost begging the majority to let locals experiment -- he doesn't know if they are right, but darn, let them try. And, though Rehnquist Era precedent might makes things somewhat harder, it too is still at least somewhat on his side (shades of Thurgood Marshall/Payne v. Tennessee what of this precedent? and this one? and ...). Finally, equal protection overall.
He might be wrong. I think not ... I still find it hard to understand why "societal discrimination," for instance, is not a serious problem that might require taking race into account. As to that, Kennedy forthrightly admits you can do it. I said I respect his opinion, and do find his concerns about race conscious problems (briefly referenced by Breyer ... you wish for a bit more than that) valid. So, some line might be drawn -- as such lines tend to be, it might be somewhat ad hoc. But, the ruling was not some splitting of the baby. We really aren't told what is okay. And, I'm with Breyer ... I don't really see the distinction here in practice. The fiction that de facto segregation is not really a problem that requires hard solutions doesn't help.
Stevens' opinion has a ring of truth on that point -- it's akin to the saying that the law in its infinite wisdom requires both the rich and the poor to not sleep under bridges. We can pat ourselves on the back for not having race conscious programs while society remains all too race conscious and divided. Just don't use the Fourteenth Amendment as justification.
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* I discuss here Thomas' concurrence, a prize to be sure, in the bong case. Do we really -- even if his selective reading is to be taken on face value -- really want to go back to the legal regime of 19th Century public schools? The age where various states, not all mind you, found it perfectly acceptable to read Protestant Bibles in public schools, and use corporal punishment toward Catholic students who refused to take part.
** The choice is deemed obvious. See also, Desperately Seeking Certainty by Daniel A. Farber and Suzanna Sherry about legal theorists with one track minds who too often set up strawman opponents. The book is at heart about the problems with having one track minds when practicing judicial interpretation. But, it helps to be myopic, since it allows one to focus on your favored hobby-horse.