Reading the school integration case.

I've put off writing about the school integration cases that came out on Thursday, in part because I was writing under the pressure of deadlines on both Thursday and Friday, but also because I genuinely wanted to read the opinions and was not eager to express an instant opinion either to condemn or to praise what the Court did.

Back when cert. was granted, I called attention to the idea of deferring to local educational policymakers, which the Court did in Grutter, the University of Michigan Law School case where the Court approved of the use of race as a factor when the goal is classroom diversity.

So if I had one predisposition, it was that I hate to see community resources absorbed in litigation, and I would prefer to leave the results of local decisionmaking in place. That is, I find federalism and judicial restraint appealing. But, of course, I have a second predisposition: I want integration to succeed, and I hate to see a Supreme Court case that people will read as hostile to it.

I know the Court writes on top a large pile of difficult precedent, and I'm not going to use this blog post to try to sort through all of that and make a pronouncement about which opinion did the best job of sorting through it.

I will simply quote the passage that I found most persuasive, from Justice Breyer's dissenting opinion:

What has happened to ... respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.

These are values of federalism and judicial restraint, conservative values, which are especially worthy of respect when they they are not used to preserve or drag us back to our racist past.

IN THE COMMENTS: Many of my readers object to what I've said here, and I will respond to a few of them. Seven Machos writes:

I really don't understand your argument at all, Althouse. The Topeka Board of Education did plenty of local decisionmaking. The Court stepped in and said that certain decisions cannot be made. What's the difference here. You can argue with the policy issues, but you can't make a federalism argument here. The federal government can either... prevent unconstitutional practices or it can't.

You're assuming the practice in question is unconstitutional. That is the matter to be decided in the case. Justice Breyer is not saying what happened here is unconstitutional, but I can't (or won't) do anything about it. For him, considerations of federalism and judicial restraint affect the analysis of whether there is a right. Taking these and other concerns into account, he finds no right violated in this case. Brown v. Board of Education involved a very different set of facts. The Court has a difficult task in defining the scope of Equal Protection, it is not obvious where to draw the line, and it is appropriate for the Court to be aware that once it says that a right exists it is denying people the freedom to make choices in a democratic fashion and that it is diverting their time and money into litigation.

Beldar writes:

"What has happened to ... respect for democratic local decisionmaking by States and school boards?"

This was, of course, the exact argument used to justify racial segregation whose purpose was to benefit whites and harm blacks.

Chief Justice Roberts has it exactly right, and it's so profoundly simple that even a lawyer like me or a con law professor like you ought to get it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

You are asserting that the simplest formulation of legal doctrine must be the correct one and implying that anyone who disagrees with that assertion is failing to understand something simple (and is, presumably, either an idiot or is playing dumb). In your view of the law, there can be no subtlety, no careful weighing? Are you willing to apply that proposition across the whole range of legal issues? Think it through. If courts could only proceed in that fashion, I think we would end up with fewer, not more rights.

From the other side, AJD said:

Oh, come on. Nothing about the man you've fawned over all year? The smiling C.J who is harkening us back to that racist past.

But weren't his prose great! Don't you love his sentences!!

There are limits to how long a blog post can be and I chose not to parse through all the opinions in this case, but in fact I don't think there is anything racist about the Chief Justice's opinion. He drew the line and defined the right in the way he saw fit, and he wrote a solid opinion explaining the decision. What I wrote in this post does not imply that he is taking us back to our racist past, only that he could have given more deference to the choice of a local majority because that democratic choice was not infected by racial animus.

And my support for the Roberts nomination had nothing to do with his good looks but with his learning and his powers of analysis. In fact, clear, elegant writing is a sign of the clear, strong thinking we want in a judge. And judges need to prove to us in writing that they are doing their job properly. Unlike you, I am able to respect and appreciate the work of judges who come to conclusions that I myself would not reach.