The Breakfast Table

Cruel Ironies

Hallo Walter, and welcome, Stuart:

The court has just handed down the last opinions of the term, and, again, all of them go 5-4. And—no surprise here—the schools cases came down as we expected, with Anthony Kennedy (sort of) joining the court’s conservative bloc in finding the Seattle and Louisville voluntary student assignment plans constitutionally impermissible. The 185-page opinion is here (PDF). (And here’s a big shout-out to our friends at SCOTUSblog who’ve come closer today than anyone could have hoped to bringing us the morning events in real time.)

I say sort of because it looks like Kennedy’s pulled a bit of a Rapanos here—siding with the majority but limiting them in possibly very significant ways—but I won’t know for sure until I reread his opinion.

Chief Justice John Roberts, writing for the majority, found that the school districts in question did not carry their heavy burden of showing that the “ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis.” Roberts finds that the school districts have no compelling interest in remedying the effects of past discrimination because the Seattle schools had never been segregated by law, and the Kentucky schools are no longer under a court decree to desegregate. He distinguishes these cases from Grutter (PDF)—the Michigan affirmative action case from 2003—because the Michigan program was in a university context and did not focus on race alone.

Kennedy writes separately to chastise the plurality opinion for its “all too unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.” Refusing to enshrine “color-blindness” as a constitutional principle, he pins his opposition to the program on a difference between de jure and de factosegregation. Kennedy finds specific problems with both the Kentucky and Seattle systems but seems to be leaving the door open to the use of race or something like race as a factor in future remedial programs, but with some kind of inscrutable Kennedy burden that is not easily discerned and may not be possible to meet.

Am I over-reading that? Wait, I see Tom Goldstein is saying something along these lines.

The only other thing I’d flag following my first hasty reading here is Justice John Paul Stevens’ brief dissenting opinion. He’s been pulling out all the stops of late in relying on his own life history to illustrate how out of touch he believes this conservative majority to be. And to see the language and logic of Brown upended in service of this holding is nothing short of a “cruel irony.” (Breyer uses the term “cruel distortion.” So much for getting past “mean.“) To that end, Stevens ends his dissent like this: “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

Maybe that kind of commentary isn’t all that doctrinally relevant, but it goes to one of the central themes of the dissenters this term: Can “the law” really be so different today than it was two years ago just because the composition of the court has changed? Remember when I asked yesterday what quality seems to be so lacking in Roberts and Alito? Stevens’ answer seems to be that what’s lacking is something along the lines of Holmes’ formulation, that “[t]he life of the law has not been logic; it has been experience.”

Walter, thanks for your note this morning on what it meant to grow up in the South before Brown. It reminded me that as much as we’d like to start the clock on this whole “color-blindness” conversation in June of 2007, it actually started long before some of our smart Vulcan friends at the court were hatched.

Looking forward to all of your thoughts on this.