It’s been a discouraging week at the Supreme Court. Over the last four days, there have been five major decisions, all of them 5-4 rulings, all of them victories for conservatives, and all of them backed by the same five-member majority (Roberts, Alito, Scalia, Thomas, and Kennedy).
Today’s ruling on school racial integration was probably the most disappointing of all.
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.”
Stevens’ and Breyer’s dissents (.pdf) are both worth reading. Their disdain for the majority is palpable.
From Stevens:
There is a cruel irony in the Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole Francels observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.
And from Breyer:
Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it…. The plurality would decline their modest request.
The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.
Ultimately, of the five controversial rulings this week, Roberts wrote the majority opinion in three, and Alito wrote the other two.
I guess it’s one of those elections-have-consequences moments, isn’t it?