Color blind justice

Opinion Journal:

Liberals were already wailing about a radical turn in Supreme Court jurisprudence, and yesterday's decisions really brought out the sackcloth and outrage. But the end of this first full term of the John Roberts-Samuel Alito Court presented no sweeping departures, instead hewing to the incremental conservative judging that was its hallmark this year.

The most contentious opinion determined that programs engineering the racial composition of school districts in Seattle and Louisville were unconstitutional. Chief Justice John Roberts, writing for the 5-4 majority, expressed the bedrock principle in a single sentence: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." But the majority was in effect only a plurality. Anthony Kennedy concurred but wrote his own, more narrow opinion that said schools can be "race-conscious," though race can't be the only or controlling factor.

Nonetheless, Stephen Breyer filed an emotional 77-page dissent arguing that the "radical" decision undermined "racial equality" and even the Court's "moral vision." John Paul Stevens excoriated the majority for its "cruel irony" in rejecting racial classifications on the basis of the 1954 Brown v. Board of Education decision, and noted his "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

Justice Stevens is taking liberties with the memory of Byron "Whizzer" White, to name one, and in any event his comment misstates how contorted the Court's race jurisprudence has become. As the Chief Justice and Clarence Thomas explained in separate opinions, the majority's narrow reasoning was consistent with Brown, the 14th Amendment and the Court's multiple precedents on race.

In both the Seattle and Louisville districts, school planners were reassigning kids from their neighborhood schools to new ones based on racial composition, even if it was involuntary. The schools argued that the diversity test established by 2003's Grutter v. Bollinger decision allowed them to sort in this way--i.e., that their programs yielded educational and social benefits.

Chief Justice Roberts argued that these efforts were invalid because the districts "have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme measures they have chosen--discriminating among individual students based on race." Grutter said schools must "narrowly tailor" programs to serve a "compelling interest" based on a "highly individualized, holistic review."

The schools in this case were using "a binary conception of race" that recognized only white or black. As for the Brown precedent, that ruling said it is unconstitutional to deny students opportunities based on government-enforced racial segregation. The segregation here was concocted by the education bureaucrats themselves.

It was in the 1970's nearly 20 years after Brown that the court turned to discrimination to overcome discrimination. That we are still dealing with the issue today tells us what a failure this turn was. The emotional reaction of liberals to the new ruling tells you they are still operating on the feeling level rather than the rational. That both sides can look at Brown as precedent for their position tells you how the penumbra of that case has become a vessel for positions. Everyone will be better off without discrimination whether it is affirmative or motivated by other passions. Affirmative racism demeans the intended beneficiaries as much as other forms of racism.

Stuart Taylor see the opinion as being much narrower than the hysterics of the dissent suggests.


Breyer’s apocalyptic language notwithstanding, the decision may not be the watershed that he and the other three liberal dissenters feared. The majority opinion of Chief Justice John G. Roberts—especially the portion that the man in the middle, Justice Anthony Kennedy, declined to join—exuded skepticism of all government programs that consider the race or ethnicity of individuals in allocating opportunities or benefits. The decision will make it harder to sustain affirmative-action programs as well as race-based school assignments....

The immediate impact will be limited, however. The race-based assignments that the justices struck down in Seattle and Jefferson County, Ky., did not foster much diversity in any event. Roberts observed that they changed the assignments of only a “minimal” percentage of students....
He points out that Kennedy managed to muddle the clarity of the opinion. This will give the liberals another shot in a later case to push their affirmative racism agenda.


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