"More Polarizing Than Rehnquist"
The most noteworthy signal from the Seattle and Louisville oral arguments is not the results they appear to portend in the cases themselves. Rather, it is the ease with which the conservative justices, in order to reach a result that fits their political and policy agendas, blew right past every jurisprudential credo to which they and their comrades in arms have long asserted fidelity. If they will do it in this case, they can—and likely will—do it in any socially or politically important case.
Were Chief Justice Roberts to avoid such adventurism and take seriously his protestations of judicial modesty, he could readily pick off some or all of the liberal justices to build majorities— and a predictable approach to deciding—emphasizing constitutional text, history, precedent, and deference to democratic decision makers. Clinton appointees Ginsburg and Breyer, in particular, consistently emphasize deference to democratic institutions (Ginsburg once famously criticized Roe v. Wade for preempting public debate on abortion policy). Roberts may choose this path. He has yet to write a major opinion of his own. But to date, he seems to be gauging whether deft public relations can provide a cover of moderation, while a bloc of four ideological conservatives undermine decades of liberal legislation and case law—and perhaps wait to see if Bush or a Republican successor gets a chance to add a decisive fifth vote to their ranks.
Written By:KipEsquire On April 30, 2007 12:14 PM Written By:Hans Bader On April 30, 2007 6:15 PM
Simon Lazarus has a strange argument.
He claims that a Supreme Court ruling enforcing federal laws banning racial discrimination in education -- that is, striking down the Seattle Schools' use of race in student assignment -- would somehow be at odds with federal legislation or case law, and with "judicial modesty."
But such a court ruling would only be enforcing the plain text of Title 6 of the 1964 Civil Rights Act, which bans any discrimination based on race in the public schools, without any exceptions.
Using race to "racially balance" the schools is not only contrary to the plain text of Title VI, it is also conflicts with statutory definitions and Supreme Court decisions defining what segregation is.
Both the Supreme Court and Congress have long made clear that using race to promote racial balance is disfavored and has nothing to do with desegregation.
The 1964 Civil Rights Act (in Title IV, Section 401(b)) declares that:
"'Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but 'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance."
Similarly, the Supreme Court has stated that "racial balance is not to be achieved for its own sake" in Freeman v. Pitts (1992), and that "racial balancing" is "patently unconstitutional" in Grutter v. Bollinger (2003).
The plaintiffs in the Seattle case are seeking the same thing that the plaintiffs sought in the celebrated Brown v. Board of Education case: the right to attend their preferred school without being excluded on the basis of race.
The complaint of Linda Brown, the Topeka elementary-school student who gave the Brown decision its name, was that she was barred from attending her neighborhood school and forced to attend a distant school because of her race.
Ethel Louise Belton, whose case was consolidated with Brown's, was assigned to a school nine miles away from her home, rather than being allowed to attend a school a short walk from her home, because of her race.
Similarly, students in Seattle are forced to endure long bus rides to distant schools, based on their race, rather than being permitted to attend their preferred schools closer to home.
The Supreme Court should exhibit judicial modesty and restraint by enforcing the civil rights laws as written, which requires striking down the Seattle Schools' use of race.
"He has yet to write a major opinion of his own."
Rumsfeld v. FAIR wasn't a "major opinion"? Just because it was 8-0?