But most commentators have recognized that Kennedy's concurrence is where the real action is. He left open the possibility of some uses of race in school decisions--such as in deciding where to build a new school. I'm a bit puzzled as to how his view that race may be "one component" of such decisions squares with his own dissent in Grutter, but am glad that he left the door open a bit by departing from the dogmatism of the majority opinion. His checks on the majority are small, but not insignificant, cracks in the door, and the onus is now on school boards and lower courts to figure out exactly what enters through that doorway, and what must remain on the outside. Unfortunately, I'm not sure that the constitutional contours of that task are clearer today than they were yesterday.
I exchanged a couple of emails with Prof. Liu (who wrote an amicus in this case) earlier tonight, and he sent along a press release he had written, and was nice enough to let me post it here. I should also mention that Prof. Liu had very high praise for the concluding paragraphs of Breyer's dissent. I definitely agree--it's the type of lofty, slightly self-important language you expect from an opinion like this. It only takes a minute to read--the conclusion starts about p. 175 (here--careful, big file). Here is an excerpt from Prof. Liu's release:
“Today a five-Justice majority of the Court recognized that racial integration of public schools remains a compelling and enduring aspiration for our society. . . . Justice Kennedy’s controlling opinion leaves open several avenues for race-conscious measures to achieve integration, including strategic attendance zoning and school siting decisions as well as magnet schools and special programs. The upshot is that the Court has sent school districts literally back to the drawing board to devise creative assignment plans to integrate our public schools.”
“It is significant that a majority of the Court—Justice Kennedy and the four dissenting Justices—rejected Chief Justice Roberts’s attempt to read Brown v. Board of Education as a categorical rule of colorblindness. . . . It is remarkable that the Chief Justice of the
The Supreme Court's term is coming to a close, and the last batch of opinions should be out Thursday and Friday. The two school integration cases are expected Thursday.
I've been following the Seattle case pretty closely for about 2 years now, since it was at the Ninth Circuit, so I'm particularly interested in that case. I can't say I'm real sure what they're going to do with the two cases: a straight-up application of Grutter/Gratz? Split the baby (a la Grutter and Gratz--but who will swing both ways?)? Totally cut back on the use of race in public schools?
Regardless, they will probably be 5-4 decisions. As has already been noted by people much smarter than me, despite Roberts' promises of a more minimalist, conciliatory Court, this term has instead brought the most fractured (both left/right, and within the right as well) Court in recent memory. I can't imagine it will be anything different tomorrow.
At the risk of being irrelevant by 6 AM, I won't say anymore. Feel free to predict/discuss these cases and the rest of the Term, which has been pretty fascinating not only for the cases decided, but for what they may mean for the future (gulp). An update (from me or EW or Armen or whoever) will hopefully come tomorrow, BarBri permitting.
UPDATE 1 (by Armen): I initially created a post not having seen MP's post here. I will just add my own prediction.
Prediction: Seattle will be held unconstitutional. The plan just has too many flaws in it, each of which are fatal in a strict scrutiny analysis. Louisville I'm not so sure about. It hasn't even been 10 years since the courts lifted the consent decree. I have a weird feeling that Alito may either completely uphold Louisville's plan or at least provide a narrow concurrence that will be the controlling opinion. In either case, Kennedy will not be a "swing vote." He is pretty far to the right on AA cases.
Speaking of swing vote, please enjoy this clip from the Daily Show.
UPDATE 2 (by MP): And down goes the use of race in public schools. Both programs are declared unconstitutional, 5-4, in a combined opinion written by Roberts. The combined opinions are 185 pages long! Roberts' opinion apparently references Brown, and claims that this opinion is faithful to that case's legacy. The dissenters, needless to say, disagree with that notion.
Interestingly, Kennedy wrote a concurrence in which he says "that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as 'one component' of the plan to achieve racial diversity" (quoting SCOTUSblog). So does that become the controlling opinion? Aren't there 5 votes for allowing race as at least "one component"?
It will take awhile to sort all this out, and to read all those opinions, but the bottom line is that the use of race in public school assignments has been severely restricted, if not entirely prohibited.
UPDATE 3 (by MP): It just occurred to me that perhaps the most interesting thing up the opinions is that there is NOT a concurrence by either Scalia or Thomas. This means that you can get a pretty good idea of what Roberts' opinion says before you read it, because there would have been a concurrence if the opinion was anything less than a total repudiation of using race. Money quote from Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Update of Update 3: Thomas did write a concurrence. No one seems to be reporting it though. It is only a response to some points in Breyer's dissent. Otherwise, Thomas "wholly concur[s]" in Roberts' opinion.
UPDATE 4 (by Armen): As MP alludes above, the opinion is 4-1-4 with Kennedy controlling. He does not like the reasoning of Breyer or Roberts. In Choper's SCOTUS class this was precisely the outcome, although for slightly different reasons. Justices Kennedy refused to join the sweeping holding of the conservative four.
Labels: Court Cases