By a predictable 5-4 vote, the US Supreme Court today called into serious question public schools’ ability to consider race in the course of trying to counter the effects of both de jure and de facto racial segregation. The several opinions — which together are 185 pages long — are available here (pdf — large file). I haven’t come close to reading them yet. Instead, I will simply quote Lyle Denniston’s summary at the always-excellent SCOTUSblog:
Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result. Kennedy suggested in a separate opinion that the Chief Justice’s opinion, in part, “is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion.”
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote. On the two school plans, the majority found that the districts have “failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts.”
The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Answering that, Justice John Paul Stevens said in dissent that there was a “cruel irony” in making that claim, because it involved a rewriting of the history “of one of this Court’s most important decisions.” Stevens noted that he joined the Court in 1975, and asserted that “no member of the Court” at that time “would have agreed with today’s decision.”
Justice Kennedy recited from his separate opinion, in which he declined to join the Roberts opinion as it discussed the lack of a compelling interest in achieving racial balance in public school classrooms. The Chief Justice’s opinion notes that Seattle was never officially segregated by race, and that Louisville is no longer under a court order to desegregate its once-segregated system. Kennedy said in his concurrence that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as “one component” of the plan to achieve racial diversity.
Justice Stephen G. Breyer next opened his microphone and began a long recital for the dissenters. The several oral statements made the announcement one of the longest in years, running for 41 minutes.
It will be some time before the impact of today’s decision is fully felt. But it can be fairly said that this opinion heralds a sea-change in the way public schools decide who goes where. There’s commentary springing up all over the place; here’s Adam B at Kos with a good start (though I’m really not sure it’s yet fair to say that today’s decision represents the “gutting” of Brown v. Board of Education).
What we do know, at the end of the Court’s 2006 Term, is this: the Senate Democrats failed, utterly, in the confirmation processes for Chief Justice Roberts and Justice Alito. Sadly, the blame lies squarely at the feet of the Democrats on the Senate Judiciary Committee, not because they voted the wrong way (some of them did, but some didn’t), but because of the way they conducted the process. If, God forbid, something should happen to Justice Stevens, Souter, Ginsburg, or Breyer before January of 2009 (or thereafter, should a Republican win the 2008 election), the Dems need to do things very differently. I’ll have more thoughts on that later.
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I couldn’t agree more. We owe this court to the Democrats who lacked balls, conviction, and courage to ask the right questions, perform due diligence, and anticipate exactly what this court would do. This is the Democrats Supreme Court, not by design but by proxy. Those of us who saw the writing on the wall and raged like possessed people at the notion that either Roberts or Alito could be seriously considered for confirmation are seeing their fears become reality. The Democrats, who seem to perennially be on the waiting list for spinal transplants, have the court a fourth-grader could have predicted we’d have if only s/he were paying attention.
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The fabric of the social progress we’ve made in this nation is unravelling at an alarming pace, and the cynic in me says oh well, this nation gets both the government and the court it so richly deserves. Welcome to the Neo-Puritanical Age of American Politics. Enjoy. (end rant)
I can think of several pro-choice groups that deeply thanked Lieberman and Chaffee for their votes. They were more concerned with raising money than actually protecting their interests. If they told both candidates, “voting for closure equals losing our endorsements,” they would have voted the right way and at the very least Alito would not be on the bench today.
What exactly should the Democrats have done?
There was little the Democrats could have done to stop it realistically, had they all voted lockstep on the Judiciary and lockstep on the floor the Justices still would have passed muster and been confirmed. Also had they not gloated so much in the Harriet Miers fiasco they might have had a more sensible moderate Justice in the mold of Sarah Day O’Connor and not a (Sc)Alito. Also to be fair when the shoe was on the other foot Ginsberg and Breyer were confirmed with 94 votes.
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What has been angering me as a wannabe con law lawyer is the fact that the big three controversial 5-4 decisions on partial birth abortion, on campaign finance, and on this case all contradict previous rulings by essentially the same court, the real fingers should not be pointed at Alito or Roberts but at Kennedy who contradicted his votes on essentially very similar cases the last time around, the only thing that changed this time was his mood and that is terrible jurisprudence if I ever heard it.
Nonsense. See below.
you’re not quite right about his allegedly shifting stances. He voted with the majority in Casey, but he dissented in Stenberg, and simply reaffirmed his vote in Gonzales. Similarly, he dissented in relevant part in McConnell, and voted the same way in WRTL. Even on affirmative action, his cryptic opinion in Grutter isn’t all that different from his cryptic opinion in today’s desegregation case. The significant change for all these cases was that O’Connor left the Court and was replaced by Alito. That’s what mattered, and that’s what we should be upset about.
We were 2 votes shy on filibustering Alito: Lieberman and Chaffee, who pretended to be a pro-choice, “moderate” repuglican, voted against Alito but voted for cloture to get to the vote. If they filibustered, Alito never would have gotten to the bench.
was not eliciting any useful information from Roberts, and particularly from Alito, during the hearings. As a result, there was no way to make a compelling public case for voting against them, or for filibustering (which was the only realistic way to stop either nomination). There are basic techniques, taught to most law students but apparently unknown to the Dems, for cross-examination. The Dems fell for every question-avoiding trick in the book, and they had no clue what to do about it. It was truly pathetic. Like I said, more to come.
…they would have been appointed regardless via recess appointments.
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The “bong hits 4 jesus” case was particularly egregious.
but recess appointments aren’t for life. That would have been only a short-term solution.
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…it is also irrelevant as to the current make-up of the court. It is the current make-up of the court that issued these horrendous decisions.
…a SupCt panel explicitly over-rules a prior decision. They didn’t even do so in Brown vs. Board of Education.
I was talking about whatever new cases are coming down the line for next year, not about the (unlikely) prospect of quickly reversing this term’s work.
At the time, the Republicans had the will and the means to end the filibuster. Not to break a particular filibuster, but to put an end to the tactic wholesale. This wouldn have provoked outrage among the savvy, but would have been seen as ho-hum inside baseball by the country. Alito would have been confirmed anyway.
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I suppose it would have made it easier to get things done in this Senate, though.
…the Republicans could have changed the Senate rules to essentially eliminate the filibuster (the so-called “nucular option”). Of course they could have done that. But they would have been stupid to do so, despite their threats to do so. They must have recognized that weren’t going to be in the majority forever, and that the Democrats when they came to the majority would take advantage of the lack of the filibuster.
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I recognize that Republicans are stupid, but they are not that stupid.
They were using empty threats, myself.
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At this point, however, I almost wish they’d have done it. Republicans would throw a hissy whenever we even talked filibuster. Notice how that now they’re the minority, they’ve become the Filibustering Party. It’s their new favorite hobby.
was arrogance, unbelieveable hubris. I thought, and think, they would have done it. These are the folks that crowed about freedom fries, after all.
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Water under the bridge now, anyway.
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How old is Stevens anyway? Ginsburg is up there as well. It will be interesting when the next vacancy comes.
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I happen to think that Democrats lose politically when they fight about judicial nominations, because they wind up looking either whiny, or vindictive. The amazing thing is that the underlying issues — or issue, really, its always abortion– is a winner for Democrats, but trying to fight those battles through judicial nominations robs them of much of their juice.
…The Republican hubris began at least as early as 1995, with the GOP takeover of both the House and the Senate.
But one longs for the days when our constitutional crises revolved around the fellation of the president, rather than the Office of the VP deciding that it is no longer governed by the rules applicable to the executive branch.
…that the OVP will no longer be able to claim executive privilege. So all communications from, to or through the OVP will be fair game for a congressional subpoena.
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Including anything relating to the OVP’s energy task force.
I’ve thought for quite some time that the modern Supreme Court confirmation hearing is a complete joke. I agree with you that Democrats could and should have done a much better job, but the fact remains that nominees from both parties use the “I cannot comment on an issue that may come before the Court” technique so broadly that it’s becoming very difficult to get even at the potential Justice’s judicial philosophy.
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I would suggest that the only real way to deal with this is to simply refuse to confirm anyone who uses the “I cannot comment” excuse for anything other then direct questions about pending cases, which is the only time this excuse should be used. Of course, sometimes the politics of it all makes this quite difficult.
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As far as something happening to a Justice before Bush leaves, I would think (and hope) the Senate would simply wait to confirm anyone until after Jan. ’09, similar to how the Senate failed to fill Justice Warren’s seat in ’68 until after Nixon came in. With Bush’s approval rating as they are (and the Dems actually controlling the Senate now), the politics of it would support this.
Lieberman and Chaffee. They were the two votes who could have stopped all of this… but don’t worry, Lieberman went down to the South when he was a teenager. He really cares about racial equality!
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This case is a nightmare.
Thank God for the Massachusetts State Constitution. The SJC has frequently fallen back on the State Constitution to prevent the erosion of personal rights. Years ago, I believe during the Reagan regime, the Supreme Court developed a good faith exception to the exclusionary rule in illegal search cases. Massachusetts retained the more stringent Spinelli-Agilar standard and held that there would be no good faith exception in Massachusetts, that the defendant had a right to suppress illegally obtained evidence. They couched that right in Adams’ Declaration of Rights.
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Assuming that the none of the 5 judge bloc die or retire in the next 15 years, we can expect much more than just this one significant chip in Brown v. Board of Education. This is just the first step. Expect a pitter patter of steps in all kinds of areas in the following 2 or 3 terms.
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Massachusetts can benefit from this regression. The acknowledgment of same sex marriages in Massachusetts is only one of the special rights enjoyed by Massachusetts citizens. We should try and make Massachusetts a beacon of personal liberty in a time when these liberties are under attack. Maybe that would help us reverse the migration trends that so many people carp about. Imagine that, personal liberty and freedom as a growth industry.
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Scalia is 71 and a few ricotta pies away from a heart attack if you ask me.
Thomas is still only 59.
Alito is 57.
Roberts is 52.
Kennedy is 70, but he –as the swing vote– does vote a more progressive stance in 5-4 votes sometimes too.
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I don’t think Scalia and Kennedy go another 15 rounds. I’d be surprised if either of them do actually. I don’t think he’ll retire 2008-2012, but a Dem in the White House would [presumably] replace an elder liberal SCJ with a younger version, thereby maintaining a progressive on the court for another 30 years or so.
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I wonder: if SCOTUS justices perceive their viewpoint as “right” — and they must — why don’t they resign at the end of the term for a POTUS who is likely to nominate a similar justice? I mean, why didn’t SDO’C retire in 1998/9?
that Justice O’Connor, despite her moderate (by today’s bizarre standards) stances on some issues, is a lifelong Republican. Most Justices are well aware of the political implications of their positions, and many try to retire during the term of a president who is of the same party as the president who nominated them. That, the speculation goes, is why Justice White (JFK’s only SCOTUS appointment) retired during Clinton’s term, even though he could be quite sure that his replacement would be well to his left.
This is great step ahead for urban education.
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We’ve got METCO shuttling off a select few an hour each way just so they can go to a decent school?! Shame!
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Where’s Ryan, who waxed on about the value of a neighborhood school in Swampscott? Do black students deserve no less than an excellent school in their neighborhood? Will it only be excellent if white kids are brought into it, too?
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For me, this decision means — no more excuses! It’s about time.