The New York Review of Books

1.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, “It is not often in the law that so few have so quickly changed so much.”

It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and deference to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition abandons restraint when it strikes down legislation that conservatives oppose, like regulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for displaying ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns.¹ These four justices seem to follow Fox News instead.

They need a fifth vote to win the day in particular cases, and they most often persuade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O’Connor’s place as the swing vote on the Court. Twenty-four cases—a third of the Court’s decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer—in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisanship when he voted with the majority in the Court’s intellectually disreputable 2000 decision to elect Bush president.² He wrote a poor and insensitive majority opinion this year in the Court’s so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)³

But in 1992 Kennedy joined O’Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,⁴ and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.⁵ He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

2.

These are strong claims about the revolutionary character and poor legal quality of many of the Court’s 5–4 decisions, and it is necessary to review these decisions with some care, in the remainder of this essay, to explain and defend those claims. The most important decision was the Court’s 5–4 ruling striking down school student assignment plans adopted by Seattle and Louisville. The plans of the two cities differed, but the goal in both was to reduce the depressing racial homogeneity of their schools. Seattle had never imposed racial school segregation by law; Louisville had, and had been ordered by a federal court to implement an integration plan, but that court had later declared the city no longer in violation. The marked racial isolation of students was therefore not the result of any contemporary legal segregation. But it was produced by geographical divisions in housing that created ghettos and ghetto schools, and that were themselves the result of many decades of systemic racial discrimination in all aspects of American society and culture.

The resulting racial isolation of young Americans at the beginnings of their lives is a national disgrace; that isolation perpetuates racial consciousness and antagonism in both blacks and whites. There is formidable evidence—Breyer cited much of it in a long and brilliantly argued dissent that Stevens called “unanswerable”—that the racial isolation has very serious educational disadvantages as well: black students do significantly better when they are not in either almost all-black schools or schools with very few blacks. Thomas, in a concurring opinion, cited contradictory studies, but Seattle and Louisville were certainly entitled to rely on the detailed and impressive evidence that Breyer cited.

Some of the schools in these cities—those in nonblack neighborhoods—are predictably more in demand from students and their parents than others. When applicants for a particular high school exceeded available places, Seattle used “tie-breakers” to decide among them. The first tie-breaker favored applicants with a sibling already at the school. The second operated when the oversubscribed school had a balance of white to nonwhite students that was not within 10 percent of the balance in the school district as a whole: it favored applicants whose admission would bring the racial balance in the school closer to that target. The third tie-breaker, if still necessary, favored students who live closer to the school over those further away.

Louisville has a black student population of approximately 34 percent. In order to avoid all-black and all-white elementary schools, it divided its school districts into clusters, each covering different kinds of neighborhoods, and it permitted parents to apply to any school within the cluster that contained their own district. It defined acceptable “extremes” of racial balance—a school must not fall below a minimum of 15 percent or exceed a maximum of 50 percent black students—and did not accept applications to any particular school that would cause it to violate those requirements. No one doubts that avoiding academic ghettos is a desirable goal, and Seattle and Louisville adopted candid means of seeking it. How can the Constitution be read to deny them that opportunity?

Roberts, who wrote the majority opinion, hardly mentioned the great social problem the cities were trying to address. He noted the dispute about whether “racially concentrated” schools are educationally disadvantageous, but said the Court need not take a view of the matter because it would make no difference to its decision even if those who thought such schools seriously harmed students were plainly right. He defended that remarkable claim with an analysis that must strike readers with little knowledge of traditional constitutional slogans as baffling.

It is settled, he said, that the Court must subject any official “race-conscious” plan to “strict scrutiny,” which means that it must strike such a plan down unless the state demonstrates, first, that the plan is necessary to achieve some “compelling interest” and then, second, that the plan is “narrowly tailored” to serving that interest, in each case as these quoted phrases have been defined in past decisions. The cities’ plans failed both those conditions of strict scrutiny, he said.

The Court had recognized, he continued, only two compelling interests that could justify race-conscious plans. The first is the interest of a school system that had formerly been guilty of explicit, legally enforced racial segregation in correcting the remaining effects of its unconstitutional past. Neither Seattle nor Louisville had such an interest, Roberts insisted: Seattle had never been found guilty of official segregation, and Louisville had already been declared to have cured its past discrimination. It is puzzling, however, why it should make a difference to the constitutional permissibility of the plans whether the conceded racial imbalances they address were the consequence of official segregation or equally effective patterns of private discrimination. The harm of ghetto education both to students and to the community as a whole is equally grave in both cases, and those who benefit from integration plans are no more entitled to that benefit in one case than the other.

In any case, as Breyer pointed out in his dissent, whether a state has been ordered to integrate is often a matter of historical accident. Seattle had been sued and might well have been ordered to intergrate if it had not secured a settlement by promising to adopt an integration plan itself. It seems preposterous that a plan that would have been constitutional if adopted a day after a court declaration should be unconstitutional because it was adopted to forestall that declaration.

The second “compelling” interest the Court had recognized, according to Roberts, was the interest of state universities and professional schools in a “diverse” student body. The Court had held, in its 2003 Grutter decision, that the University of Michigan Law School was constitutionally permitted to take race into account, as one factor among many, in seeking a diverse student body as academically beneficial to all students. But that holding, Roberts insisted, was limited to institutions of higher education, and did not apply to elementary and high schools. In any case, he added, the cities’ plans were not “narrowly tailored” to any goal of diversity, because Seattle measured diversity only by the balance between white and nonwhite students, and Louisville only by the proportion of African-American students, in both cases neglecting the distinct diversity contributed by Asian-American, Latino, and other racial and ethnic groups. In fact, he said, these plans aimed not at diversity but at a particular racial balance, and he noted that the Court had on several past occasions declared that racial balance was not, on its own, a compelling state interest.

Again, this argument is misplaced. Seattle and Louisville did not—and had no reason to—aim at proportional representation of all the many races and groups that a census of their residents might distinguish and it is silly to criticize them for not “tailoring” their plan to any such pointless goal. They aimed in different ways at avoiding a striking and dangerous degree of the one imbalance that, sadly, matters most in America now: the isolation of white and nonwhite children from each other. Roberts said that “accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society….” That slippery-slope argument assumes that the cities were trying to achieve a stipulated racial balance for its own sake, as if mimicking a community’s overall racial balance in all its institutions were in itself a desirable political goal or represented a fair division of political spoils. But the cities aimed only to correct a specific kind of racial isolation that almost everyone agrees is particularly malignant: in the training of children for future citizenship. Their defense of that aim would certainly not justify more general plans for racial balance in all other institutions. A court that cannot see these crucial distinctions is not so much color-blind as just blind.