SCOTUS Interruptus: Nevermind That Whole Brown v. Board Thing
Welcome to the fourth installment of Subrosas SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Courts important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their website here.
With the end of this years Supreme Court term, its only natural to look back at the entirety of it to try to glean some understanding of the Courts current incarnation. As we discussed last week, commentators are already looking at this Court as one of the most closely divided and sharply partisan Courts in history.
Fully a third of the courts 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 courts polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The courts 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 courts 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.
And of course, weve already discussed how The Notorious J.A.K. rolls. I re-iterate this point not simply because it is truly astonishing, but because it becomes very important when analyzing what could become the most important decision of the term: Parents Involved in Community Schools v. Seattle School District 1.
In Parents Involved the primary issue presented was essentially this: Should a high school be allowed to undertake admissions programs designed to even out the racial balance of their school while using race as a determinative factor to do just that? The Courts answer was, as youve all probably heard by now, essentially no. But what did that no mean and what can we learn from the nearly 200 pages of opinions, concurrences and dissents that accompanied it? How do schools go about achieving integration in the future? Can they even try if they want to? Does Parents Involved overrule Brown v. Board of Education?
The general consensus answer to all of those questions seems to be: Well, were not sure. (Come on, you werent looking for a simple answer here, were you?)
The one big reason why we dont really know what legacy Parents Involved will leave us is that while it was decided 5-4, the official opinion of the court was only joined by four Justices (Roberts, Scalia, ScAlito and ScaThomas), not the five that they would need to earn a majority opinion. The dissent was joined by four justices (Breyer, Souter, Stevens and Ginsberg). Which left one Justice to write a concurring opinion. If you dont know which Justice that was you havent been paying attention.
Heres the extreme shorthand of what happened:
-ROBERTS, SCALIA, ALITO, THOMAS: Race may never be used as the determinative factor in admissions in public schools.
-BREYER, SOUTER, STEVENS, GINSBERG: Race may be used as the determinative factor in admissions in public schools so long as it is there to correct past racial segregation or injustice.
-KENNEDY: Race may sometimes in certain, distinct cases be used as a factor in admissions in public schools, but just not in this case because it is the sole determinative factor.
So what are we left with? Many commentators are simply saying do the math. When you add up the votes for the ability of schools to use race in some cases you get 5 votes (the dissenters plus Captain Wins All The Time.) In essence, the opinion of the Court ends up being in the minority when it comes to the issue of whether race can ever be used to help balance schools. Welcome to the wacky world of Supreme Court Jurisprudence.
So, we toss out the majority opinion, right? Well, sorta. We have to look at what Kennedy agreed with the Roberts faction on first before we can glean any actual rules from the decision. Heres one mans take on it. (some internal citations omitted)
Here is what is clear from Justice Kennedys 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
While thats all well and good, its also extremely frustrating on many levels. While Kennedy, to his credit, did not go out of his way to circumrule entirely around applicable precedent (see: Grutter v. Bollinger; Freeman v. Pitts; and Brown v. Fucking Board of Fucking Education, among others) that should have led the Court to the inescapable conclusion that the programs at issue here were constitutional, he also left the primary question wide open. To wit: what the fuck are schools realistically supposed to do if they want to encourage racial diversity?
Justice Kennedys 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
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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.
Herein lies the real tragedy of the Parents Involved. Lacking any true guidance as to what is and what is not ultimately permissible, cash-strapped school districts around the country are not going to take the risk of exposing themselves to future litigation on the hopes that their particular program *might* pass constitutional muster. In other words, racial integration in public schools could be, for all intents and purposes, finished.
Some have (disgustingly) hailed Parents Involved for doing just that. After all, didnt Brown say that all racial classifications are automatically unconstitutional?
Well, no, in fact. It fucking didnt, despite Justices Roberts and Thomas assertions to the contrary.
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 countenanceseven requirescontinuing 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.
That perversion of the spirit and holding of Brown has culminated in Parents Involved. It is a world where racial inequality does not exist, and even if it did, we would be powerless to address it. In one way, I am almost glad that Justice Thurgood Marshall is not alive to see how his arguments in Brown have been co-opted to institutionalize racial separation. The shock might kill him all over again.
SCOTUS Interruptus: The Court Has Lost Its Damned Mind
Welcome to the third installment of Subrosas SCOTUS Interruptus, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Courts important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their website here.
Call it Black Monday for rationality. Weve already discussed the positively moronic Morse v. Frederick case a bit. There, the Court ignored any notion of how far the schoolhouse gate referred to in prior student speech cases (most notably Tinker v. Des Moines.) While it was doing so, it asserted that it was somehow reasonable to assume that the phrase Bong Hits 4 Jesus was pro-illegal activity. Finally, it endorsed a lower standard of review for subject-matter regulation of speech, so long as that regulation has to do with keeping kids from talking about drugs. In other words, it was a total mess.
But thats not all! Remember a few months ago when I wrote this about the oral arguments in F.E.C. v. Wisconsin Right to Life, Inc.?
If the Court finds that McCain-Feingold is unconstitutional as applied to the regulation of the Wisconsin anti-abortion groups ads, the law will lose much of its effect. Essentially, it could allow political advocacy groups to broadcast issue ads specifically targeting candidates up for election so long as they do not come out and say vote for the other guy. It would be a hole in the law that would be even bigger than the one the Swift Boat fuckers exploited to smear John Kerry.
Well, consider that hole blown open! Huzzah!
The Supreme Court on Monday took a sharp turn away from campaign finance regulation, opening a wide exception to the advertising restrictions that it upheld when the McCain-Feingold law first came before it four years ago.
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Congress enacted [McCain-Feingold] in part in reaction to a flood of special interest money into both parties. Throughout the 1990s, both parties had aggressively courted contributions to their allied party committees from corporations, unions and wealthy individuals for the express purpose of winning elections.
These donations, known as soft money, thus circumvented the limits on campaign contributions under older campaign laws. The McCain-Feingold law sought to end the use of soft money in part by barring corporations and unions from contributing to parties or political action committees.
The new decision brings back soft money, said Kenneth A. Gross, a Washington lawyer who represents corporations in election law matters. The significance of it is, you can use soft money to do these ads, he said. This is a clear shot over the bow by this court that there is going to be less regulation of money in politics. The fulcrum has now shifted.
While I am certainly sympathetic to the idea of unfettered free speech rights, I would be much more excited about the Courts ruling if I felt it was in any way supported by precedent or motivated by anything other than a judicial hard-on for the white-collar sector. After all, in the above two cases the Court basically said that the First Amendment protects corporations more than it does students. Solid.
Moving on, in Hein v. Freedom From Religion Foundation, Inc. the Court closed off an avenue that allowed individuals to challenge pro-religious government actions. Here, just as in Wisconsin Right to Life, the Court sidestepped precedent that should have led it to one conclusion and gleefully chose the other.
Prior Supreme Court cases had established that taxpayers could bring challenges in federal court if their money was being used to favor religious entities in violation of the Establishment Clause. But in Hein, the Court invented this distinction: Because the government act at issue here (President Bushs Faith-Based Initiatives) originated in the Executive rather than Legislative Branch, the prior precedent doesnt apply and Taxpayer standing doesnt exist. Forget the fact that the money that Bush used to put into the programs was given to him by Congress. Once the money gets into Bushs hands, it is magically transformed from tainted to pure. Like Jesus turning water to wine.
Whats striking about all of these decisions is not just that they are dumb. Its that (in addition to the totally awesome opinion in National Association of Home Builders v. Defenders of Wildlife which weakened the power of the EPA to protect endangered species from having construction take place in their habitat) they were all decided on a 5-4 vote. And in every single one the so-called swing voter on the Court voted with the Conservative side.
This is not a new phenomenon. In fact, this has been happening with alarming regularity since the appointment of Justices Roberts and Alito.
Entering what many expect will be the Courts final public sitting of October Term 2006, the Justices have issued 21 decisions 5-4 (based on our judgment). While not remarkable as a raw total, the figure falls at the high end of the spectrum as a percentage of cases when looking at terms in recent history. Indeed, if more than one of the Courts remaining cases are decided 5-4, OT06 would produce a higher share of 5-4 decisions than any term in the last decade.
Following Mondays session, during which the Court handed down four 5-4 decisions, more than 30% of cases this Term have been decided 5-4.
By issuing two 5-4 decisions on Thursday, that figure would climb to 31.9% the highest of any sitting in the last ten years.
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By contrast, this term the left-of-center Justices have prevailed thus far in only five of the 21 cases decided 5-4 (24%) and none have enjoyed a 5-4 victory since April 25, when the Court handed down Smith, Brewer and Abdul-Kabir. The Courts more conservative members have had a comparatively more successful run in 5-4 cases, forming majorities in 11 of 21 cases (52%). The Courts most successful member of all, of course, has been Justice Kennedy who voted with the majority in every 5-4 decision issued thus far.
For those of you who are visual learners, ScotusBlog did this somewhat creepy pictogram of the decisions. Look at how smug and powerful Justice Kennedy is. Winning all the time. Hes like the New York Yankees of the Supreme Court. Except hes actually having a good year.
All jokes aside, liberals are not only not amused at the Courts decided turn to the right, but theyre petrified for the future.
Presidential elections and judicial selections matter, the Supreme Court demonstrated Monday in a series of 5-4 rulings that underlined the Court's move to the right.
President Bush filled two high court openings early in his second term with Chief Justice John Roberts and Justice Samuel Alito. They wrote the main opinions in rulings that relaxed rules on corporate and union political spending, limited students' speech and shielded the White House faith-based program from legal challenge.
With its term rapidly nearing an end, the Court has perhaps the biggest issue of the year still to decide: whether public school districts can take account of race in assigning students to schools. Many Court watchers are expecting a similar ideological split, with conservatives limiting the use of race.
The case to which the article is referring is Meredith v. Jefferson County Board of Education, and the opinion could be delivered as early as today, the last day of the scheduled term.
Anyone want to bet what the decision and voting breakdown will be?
Can You Guess the Most Powerful Person in American Government?
Did you say George Bush? Please. Dick Cheney? Getting warmer, but no. Karl Rove? Joe Lieberman? Nancy Pelosi? Harry Reid? John Roberts?
No, no, no, no and no.
The most powerful person in American government, and possibly the most powerful person in the country, is a former Constitutional Law professor at McGeorge School of Law in Sacramento, California named Anthony McLeod Kennedy.
I know what youre saying. Youre saying, But Brosa, hes just one of nine Justices on the Court! Heck, hes not even the Chief Justice! What the golly-eff-gee are you going on about?
All true. Kennedy is just one of nine. He is not the Chief Justice. However, hes still the most powerful man in government. Why? Because he is now the one and only swing voter left on the Court. The other eight justices are predictable. Roberts, Alito, Scalia and Thomas on the right, Souter, Breyer, Ginsberg and Stevens on the left. They are predictable voting blocks and vote together seemingly all of the time. The wild card left is Justice Kennedy.
Remember that article I wrote about Massachusetts v. EPA? Guess who was the swing vote in that case? Kennedy. Who was the swing vote in the case that ruled it was unconstitutional to execute minors? Kennedy. What about the partial birth abortion case decided yesterday? Wait for it
wait for it
KENNEDY! Hell, dude even wrote the opinion. All in all, Kennedy has been the pivotal vote in a 5-4 decision in no less than nine times this term. Dude goes both ways more than Anne Heche.
Dont believe me? Im not the only one saying it.
"We better get used to it," said Northwestern University law professor Robert Bennett ."Now Kennedy is right smack in the middle. I suspect he loves it."
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"It really is the Kennedy court," Duke University law professor Erwin Chemerinsky said.
(For those of you who dont know who that last guy quoted is, hes essentially a Constitutional law demigod. His word is bond, if you will.)
It used to be that Kennedy and Justice Sandra Day OConnor were the swing voters who could go either way on social issues but would predictably vote with the conservative justices on matters like defining the reach of the commerce clause or which president to install. Those days are gone. I cant be sure because hes only been on the Court for a short period of time, but if we ever see Samuel Alito (the Justice who replaced OConnor for all intents and purposes) vote with the liberal justices on a social issue, Ill eat my bar card. Point is that on virtually every issue thats close we will be seeing Kennedy cast the deciding vote for the foreseeable future.
That is what makes Kennedy so powerful. But dont misunderstand me, my friends. I didnt like the Gonzales v. Carhart decision yesterday, but there are plenty of conservatives who hate Kennedy wayyyyy more than you or I do.
Conservative leaders meeting in Washington yesterday for a discussion of "Remedies to Judicial Tyranny" decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.
Phyllis Schlafly, doyenne of American conservatism, said Kennedy's opinion forbidding capital punishment for juveniles "is a good ground of impeachment." To cheers and applause from those gathered at a downtown Marriott for a conference on "Confronting the Judicial War on Faith," Schlafly said that Kennedy had not met the "good behavior" requirement for office and that "Congress ought to talk about impeachment."
Next, Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy "should be the poster boy for impeachment" for citing international norms in his opinions. "If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well."
Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, "upholds Marxist, Leninist, satanic principles drawn from foreign law."
Ominously, Vieira continued by saying his "bottom line" for dealing with the Supreme Court comes from Joseph Stalin. "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem,' " Vieira said.
Classy! Granted, those quotes came in 2005, so presumably theyve calmed down since Kennedy just authored the opinion that approved a partial birth abortion ban. One would think they may not subtly threaten to kill him after that, but stranger things have happened.
It is odd that this much vitriol is aimed at Kennedy from the right. I mean, sure they consider him a traitor (He was appointed by Reagan and thinks buttsex is OK?! Stone him!), but Justices Stevens and Souter were also GOP appointees. I think what scares these people is that Kennedy seems to march to the beat of his own drum and plays the center-line well. Reactionary conservatives are threatened by that sort of uncertainty.
That uncertainty is, of course, what also makes him The Most Powerful Person in American Government. Hail to the true Philospher-King! Its Kennedys world and were all just living in it.
Subrosa, for one, would like to welcome our new California-Born Supreme Court Justice overlord.