"There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court’s new majority."

Writes Linda Greenhouse of the racial balancing cases argued yesterday:

Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.

But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices’ questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.

Is it really so hopeless for the school districts? What did Justice Kennedy say?

While his questions suggested that he would not rule out any and all policies undertaken with a knowledge of the probable racial consequences, Justice Kennedy made clear his distaste for the policies at issue in these cases, Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

To Mr. Madden, the Seattle district’s lawyer, Justice Kennedy said that unlike magnet schools, special resources, or school location decisions, “you’re characterizing each student by reason of the color of his or her skin.”

He continued: “That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.”