Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the court’s polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The court’s last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.

Of the ideological cases decided this term, the conservative majority, led by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., prevailed in 13. The court’s increasingly marginalized liberals — Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.

Here is what is clear from Justice Kennedy’s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race.

Second, and relatedly, the Constitution does not require color-blindness.

Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. (“individual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.”); (these programs are unconstitutional because “the schools could have achieved their stated ends through different means”).

Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. Schools may take account of race in such decisions as “site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” … These are “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race”

Justice Kennedy’s proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush. I am not aware of a non-magnet program in which school districts regularly consider individual criteria in assigning the thousands of students within their jurisdiction….

Lacking the resources that would be required to implement such a holistic approach honestly, it is most likely that school districts do one of two things. They may give up altogether on the effort to consider the race of individual students in placement. This is the probable result in most cases, and it produces as a practical matter the approach that the plurality today believes is required constitutionally (at least absent a compelling evidentiary showing). Alternatively, school administrators may engage in an “under the table” consideration of race, attempting to force the racial integration of schools without any express acknowledgment of the effort.

In passionate dissents, justices John Paul Stevens and Stephen G. Breyer lament the conservatives' treatment of Brown. Stevens describes their reliance on Brown as "cruel irony." And Breyer describes their comparison of state-mandated racial segregation in the 1950s with contemporary voluntary desegregation plans as a "cruel distortion of history."

Stevens and Breyer are right. The offense they have taken at Roberts' and Thomas' treatment of Brown is entirely appropriate. The plurality and concurring opinions undermine and misinterpret decades of efforts to undo the long American history of racial segregation, discrimination, and inequality.

The question we need to ask is: How did the conservative justices manage to appropriate Brown so completely? How did they so easily convert Brown from an opinion championing racial equality into one that countenances—even requires—continuing racial inequality and segregation in the name of the Constitution? The answer is simple: through abstraction. They have abstracted a decades-long struggle for racial progress into a single formalistic harm: government classifications on the basis of race.