Advantages of a Conservative Plurality on the Supreme Court

They're willing to strike down racially discriminationary laws--at least when they are this gross. In today's decision Parents Involved In Community Schools v. Seattle School District No. 1 (2007) they ruled that assignment of students to schools strictly on the basis of race violates the Constitution--and they point to Brown v. Board of Education (1954). As the headnotes point out, a bit more articulately than Chief Justice Roberts' opinion, in Brown, it wasn't the inequality of the schools that was the legal problem, but that individuals were discriminated against based on race--and that's the problem with both the suits that were consolidated into this decision.

The Seattle case involved students applying to hard to get into public high schools; the school district decided who to assign to what school based on whether that student's race would advance their goals for racial balance--and as Roberts' opinion points out, the only race that matters is white vs. non-white. If "diversity" was the goal, they would have been concerned about more than just this crude distinction, and they would also have been concerned about socioeconomic class. Roberts' opinion points out that what made race a tolerable factor in the Grutter decision was that race was not the only factor. In addition, Seattle schools have never been racially segregated.

The Kentucky case involved a child who couldn't get into the elementary school one mile from his home because it was full. The district, again making a decision based solely on whether the child was black or not, offered an elementary school ten miles away--but refused the child's entrance into an elementary school that had openings, and was also one mile away. Again, race was the only factor in making the decision, and it reminds me of the absurdity of the bad old days when black kids might have to pass right by a neighborhood school because they were the wrong race.

Justice Thomas' concurring opinion points out that the liberal dissent was destroying the meaning of the word "segregation" when they claimed that racial discrimination was necessary to prevent "resegregation." He reminds the reader that the evil of segregation was not that some schools were majority black and some majority white, but that the law required that students be assigned to schools based on their race, treating every individual as simply a representative of whiteness or blackness. Thomas also quotes from many of the decisions of the Court from the 1960s and 1970s that insisted that school districts had to obey the law, and not assign students to schools based on their race.

Thomas also points to the hypocrisy of the Seattle district, which claims that racial balance is necessary--but runs a K-8 "African-American Academy" which is, unsurprisingly, 99% nonwhite.

Justice Stevens' dissent, of course, argues against strict scrutiny--which is really sad. Part of why we have "strict scrutiny" as a doctrine is because segregationists for many years had the best lawyers. Strict scrutiny became a mechanism for striking down discriminatory laws that would otherwise have survived less demanding standards. Now liberals are reduced to arguing against strict scrutiny with respect to race!

I'm disappointed with how opportunistic much of the Republican Party has become in the last year or two (the illegal immigrant amnesty, for example), but if there's any question about whether we need a Republican Senate and a Republican President, you need only look at a decision like this. Imagine if the last two Supreme Court justices had been appointed by a Democrat--I think we can say with some certainty that they would have approved treating students not as individuals, but as black and white chess pieces.