The Most Activist Court

Digging out from an unprecedented avalanche of 5-4 end-of-term Supreme Court decisions overruling its own precedents, federal statutes, state laws, and local ordinances, many Americans have now caught sight of a specter once imagined only by a tiny cadre of legal cognoscenti: A Supreme Court bound and determined to reprise the Court's reactionary role from a century ago, out to squelch progressive policies whatever their source.

Transparently, and contrary to his earnest pre-confirmation professions of fealty to judicial "modesty," Chief Justice John Roberts embraces this activist enterprise. He evidently sees himself in a leadership contest -- not leadership of the Court nor, much less, the nation, but of the elite of very smart and equally ideological lawyer-conservatives which remains his political home and constituency. His much-publicized recent spats with Justice Antonin Scalia -- over whether to overrule landmark precedents, or to retain them in principle but marginalize them in practice -- seem purely intramural. The legalistic terms of that debate mask what is in reality an issue of political strategy for the conservative bloc and its allies: whether to openly proclaim their ideological agenda and court public approval, or to pursue an insiders' stealth strategy, hiding behind technicalities, or, in Justice Scalia's derisive but not inapposite words, "obfuscation."

Obviously, in terms of raw voting power, this dramatic rightward shift was caused by Justice Samuel Alito's replacement of former Justice Sandra Day O'Connor. But the key variable, and the true locus for blame -- or credit, depending on one's point of view -- is Roberts. As a nominee, Alito was candid about where he stood, and as a result provoked a near unanimous negative vote against his confirmation from the then-45 member Democratic Senate caucus. Roberts, in contrast, deliberately tacked to the center, securing support from half the Senate's Democrats as well as prominent moderate and independent opinion-shapers off of Capitol Hill.

But, as we all now know, in 5-4 decision after 5-4 decision, Roberts has scorned the kind of "modest," "consensus"-seeking course he charted in his hearing. In the most significant of these, the school integration decisions announced yesterday, he could have adopted the approach reflected in swing-Justice Anthony Kennedy's middle-ground concurring opinion. Kennedy disapproved the use of racial criteria in the particular context of the Seattle and Louisville plans before the Court. But he emphatically endorsed diversity in education as a high priority societal goal, that in principle can be promoted by race-conscious means. Although that goal is broadly supported by the public and by substantial elements in both political parties, Roberts and his allies audaciously underscored that they will use every tool at their command to defeat it.

Justice Kennedy's posture also invites critical attention. His opinion prompted civil rights groups, such as the NAACP Legal Defense Fund, the Leadership Conference on Civil Rights, and Opportunity Agenda, to spin the overall decision as a substantial victory, on the ground that a five justice majority "reaffirmed" the Court's recognition of diversity as a "compelling" governmental interest, thereby leaving the groups' litigation opportunities open. The hitch is that the menu of options Kennedy specifically enumerated as legitimate race-conscious approaches he would allow local school boards to deploy -- strategic site selection for new schools, race-conscious delineation of school or attendance zones, resource allocation, student and faculty recruitment, and race-based statistical tracking of student or school performance (i.e., No Child Left Behind) -- are generally not widely available or effective as a practical matter. Justice Stephen Breyer's dissent pointed out, for example, that Seattle had built only one new school in the last 44 years. Had Breyer and his three dissenting colleagues believed that Kennedy's middle-ground approach was truly constructive, they could have joined to create their own 5-4 majority.

Indeed, the content of all three major opinions -- Roberts', Kennedy's, and Breyer's -- suggests that in this case as in others (like Bush v. Gore) Kennedy may have kept his vote in play for some time; both Roberts' and Breyer's opinions concentrate on attacking each other's arguments, while Breyer's in particular goes out of its way to embrace Kennedy's language, suggesting that each opinion was originally drafted to court an as-yet still undecided swing-justice. That Breyer and his allies did not moderate their elaborate attack suggests that they perceived Kennedy's offer as a sham -- a compromise in name only that won't work in practice, in effect a variation of Roberts' "obfuscation" strategy.

As they push aside the debris from the Roberts Court's second term, what should liberals do and say? Here are three quick and simple suggestions.

First, with respect to the school integration cases specifically, stop casting the issue as one about race, and disengage from backward-looking debates about whether the legacy of Brown v. Board of Education is better served by race-conscious remedial desegregation or by Roberts' concluding sound-bite, "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race." The key issue is, going forward, what business do five unelected, life-tenured judges have dictating policy, in this case policy for ensuring that our institutions harmoniously accommodate an increasingly heterogeneous population -- especially when those judges lean well to the right of an electorate trending center and left?

Second, wherever this hard-right bloc is coming from, it isn't the law. In the school cases, Chief Justice Roberts offered no pretense of deriving his argument from the text of the Fourteenth Amendment, much less from the record of what the framers of the amendment intended when they wrote it. And no wonder. That text guaranteed African-Americans, and all other persons, equal protection of the laws. These words were intended to mean what they said: they outlawed practices that systematically rigged state legal systems to facilitate the suppression of blacks; there is nothing in that text that would bar Congress and state governments from ever referring to race in writing laws to attain the goal of equal protection.

On the contrary, as legal and historical scholars -- 60 of whom signed an amicus curiae brief to the Court -- have exhaustively demonstrated in scores of books and scholarly articles, Reconstruction Congresses, in addition to adopting the Thirteenth, Fourteenth, and Fifteenth Amendments, aggressively promoted racial integration as a goal and deployed race-conscious measures to achieve it. They provided for special payments to "colored" soldiers to ensure they were compensated for service to the Union; established a bank to provide financial services to "freedmen and their descendants;" passed numerous race-conscious anti-poverty measures; and, most important, created the Freedman's Bureaus to fund school construction and other education programs specifically for blacks. All these measures were enacted over objections, including vetoes from President Andrew Johnson, that marshaled precisely the arguments made today by opponents of school integration programs like those deployed in Seattle and Louisville.

Principled conservatives acknowledge that the Reconstruction generation "originally" understood the Fourteenth Amendment to promote equality for blacks and posed no 'absolute," across-the-board bar to race-based classifications. Chief Judge Michael Boudin of the First Circuit Court of Appeals, a widely respected Bush I appointee, observed in a 2005 case that a Lynn, Massachusetts integration plan similar to those in Seattle and Louisville "is far from the original evils at which the Fourteenth Amendment was addressed . . . [which were] the oppression of one race by another." In the Seattle case itself, in the Ninth Circuit decision under review by the Supreme Court, Judge Boudin's approach was endorsed by prominent conservative and Reagan appointee Alex Kozinski.

In dispatching these legally conscientious Republican jurists, both Roberts' and Kennedy's opinions of yesterday betray keen awareness of their frailty on the basic law applicable to the case. Neither makes virtually any mention of the relevant text, its appropriate and logical construction ("strict" or otherwise), or its history.

Third, again, contrary to the earnest commitments offered by Chief Justice Roberts pre-confirmation, these decisions embody the direct opposite of "judicial restraint" and respect for democracy. Justice Breyer's elaborate dissent details the long history of segregation and resegregation which the Seattle and Louisville school districts had sought to remediate, elaborating the options that had been tried, abandoned, allowed, disallowed, failed, and succeeded, however temporarily or partially. Roberts in his opinion literally disdains to consider these facts. In essence, he semantically dismisses the legitimacy of the districts' goal of promoting diversity by relabeling it "racial balance" -- thereby excusing himself of the annoyance of taking into account the circumstances faced by the school officials, and the electorates who put them in office.

For liberals to take back the federal judiciary -- and hold it -- will be a long slog. Success will require following Justice Breyer's lead and enlisting voters in communities like Seattle and Louisville in that cause.

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