Patterico's Pontifications

6/29/2007

My Application for the Position of Associate Justice of the United States Supreme Court Is on File

Filed under: Constitutional Law,Court Decisions,General,Judiciary,Law,Race — Patterico @ 8:21 pm

There’s a reason for that smug smile I have on my face. I just read the Supreme Court’s decision in the forced integration cases, and I’m feeling like Carnac once again. Earlier this week, I told you:

The smart money says that it will be 5-4 rejecting the race-based assignment plans, with Chief Justice Roberts writing for the majority. Anything else will come as a shock. The interesting thing will be to see how the majority characterizes the holding of Brown v. Board of Education.

In my post from December 2006, written the day of the oral arguments in this case, I described my view of these cases — and of the proper way of viewing the holding in Brown — as follows:

[N]obody is saying that government may once again institute forced segregation of schools as a matter of state policy. The issue is whether government may institute forced integration of schools as a matter of state policy. If not done to remedy a specific and demonstrated past history of discrimination, this would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.

Now let’s read from Chief Justice Roberts’s opinion, paying special attention to the parts I have bolded (and comparing them to the bolded quote immediately above):

As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p.7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U.S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

That sounds a lot like saying: “If not done to remedy a specific and demonstrated past history of discrimination, [forced integration] would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.”

So, as I say in the post title, I’m available if a Supreme Court spot opens up. Only problem is, that’s unlikely to happen any time soon. Do you think Hillary will consider appointing me?

P.S. If you’re interested in this issue, I insist that you watch this fascinating Nightline segment with Jan Crawford Greenburg, which is supplemented by this article by her and Howard Rosenberg.

P.P.S. I should make clear that the quoted language is from a portion of the opinion that is only a plurality. The commendable principles articulated above do not enjoy the support of the eternally squishy Anthony Kennedy.

25 Responses to “My Application for the Position of Associate Justice of the United States Supreme Court Is on File”

  1. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

    This is the line I’ve been hoping for and expecting ever since I watched the Chief Justice’s confirmation hearings. As for the next SCOTUS slot in a Clinton Administration, I believe it’s been promised to Larry Tribe already since sometime in 1999.

    Beldar (a498cf)

  2. Beldar — the GOP in the Senate WILL filibuster the first liberal nominated in any Dim. administration. Schumer and Leahy have legitimized the tactic, they just didn’t have the guts to use it.

    The GOP’ers will shove it down their throats now, and there aren’t enough Chafee-like RINOs in the Senate anymore to keep it from happening.

    wls (2fdbfd)

  3. “Do you think Hillary will consider appointing me?”

    Yknow, I’m pretty freakin’ liberal, but I tend to agree with your take on almost every SCOTUS decision, and most of your legal outtakes, so you’d have at least one blogger backing you…

    David Markland (c04811)

  4. if you want to be on the u.s. supreme court, you better pray for an opening sometime between now and that point in time, significantly before the end of his term, when bush will lose the authority to seat a new justice against a hostile senate which can just run his clock out, because you could be collecting social security by the next time a republican president gets elected.

    assistant devil's advocate (95f784)

  5. You’d make a great Supreme – you could even be the first blogging SC Justice – but given today’s politics you may have to start small. How about the 9th Circuit?

    DRJ (31d948)

  6. ADA, i’m not convinced that Bush could get a justice confirmed today.

    aphrael (db0b5a)

  7. So you predicted the obvious and are proud of it. Now lets look at the context:

    As soon as the Court delivered its opinions in Brown I and Brown II a debate began whether or not Brown required merely desegregation– i.e., an end to official legal assignment of students based on their race, or integration– that is, affirmative steps to break down racial barriers and to integrate public functions and public life. Southern critics of Brown, hoping to preserve the status quo, argued that Brown meant at most “desegregation, not integration.” They followed a often cited statement by Judge John Parker in the Fourth Circuit (see Mark Tushnet’s post below). Parker had personally rejected massive resistance but decided to read Brown in the narrowest way possible:
    Under Brown, Parker said, “a state may not deny to any person on account of race the right to attend any school that it maintains.” However, so long as schools are “open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools.” Pursuant to Brown, Parker explained, the Constitution “does not require integration. It merely forbids discrimination” and “forbids the use of governmental power to enforce segregation.”

    The advocates who pushed for Brown, by contrast, argued for integration. They had two goals in mind: they wanted, first, to ensure that blacks had equal opportunity in all spheres of American life, including housing, jobs, health care, and education… (more)

    People read laws narrowly or broadly depending on their ideologies. Federalism, and originalism both go out the window, replaced by some other hard fast rule to achieve desired ends.
    This decision overturns precedent and returns to the precedent set by the most narrow and historically pro-segregationist reading of Brown.
    There ya go.

    AF (4a3fa6)

  8. I especially liked Judge Thomas’s concurring opinion. He hammers Breyer’s dissent.

    Viktor (119802)

  9. So in a school racial assignment case, you picked out that the important precedent was Brown? Very high qualifications you have here!

    whitd (e1d099)

  10. AF,

    It was obvious, actually, to anyone who listened to the oral argument that this was Roberts’s interpretation of Brown. What whitd doesn’t seem to realize is that it is not the only possible interpretation of Brown. Don’t believe me? Read the dissents.

    In other words, there’s more to the analysis than simply identifying the correct precedent. It’s knowing how the Court will read it that’s important.

    Patterico (2a65a5)

  11. Pat:
    What this, and other fine posts, demonstrate is that you are completely un-qualified for the post you seek, and your future in the legal community is tentative at best, due to your excess of common sense; which, as everyone knows, has no place in the legal system as currently constituted.

    I find it interesting that Rush, in his first comment on this decision, used this importatnt quote:
    “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

    Perhaps a new era HAS opened in American Jurisprudence? It is long overdue.

    Another Drew (8018ee)

  12. God you’re a putz.

    Snerk (c99a54)

  13. I find it interesting that Rush, in his first comment on this decision, used this important quote:
    “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

    Sorry, still on my first cup of joe, and the old fingers are still a little groggy.

    Another Drew (8018ee)

  14. “It’s knowing how the Court will read it that’s important.”
    And that wasn’t hard to do.

    AF (4a3fa6)

  15. do you think blogging might be counterproductive to judicial aspirations, in light of stealth considerations?

    assistant devil's advocate (dfa22f)

  16. “In other words, there’s more to the analysis than simply identifying the correct precedent. It’s knowing how the Court will read it that’s important.”

    But you happened to agree with the plurality. There are other readings. In fact thats been the key fight over brown since it started: what does it say about the treatment of race.

    whitd (23c2b4)

  17. More importantly, and totally ignored by the partisans in this debate (including Justice Stevens), is the issue of timing.

    What served for justice in 1960, or even 1975, might not serve for justice in 2007. If one looks at, say, LAUSD and its demographics one must conclude that “desegregation” was counterproductive. Unless your aim was to drive all the whites out of the public schools system, desegregation in Los Angeles was an utter failure. To the point that many schools is predominately Anglo neighborhoods are almost all minority students, bussed in.

    Of course, if the aim was to drive out the whites and send the minority kids to schools in safer areas, it was a complete success.

    It may take some time, but the end of active desegregation and a change to non-segregation may be the thing that starts the long recovery of the public schools.

    Kevin Murphy (0b2493)

  18. Patterico, just because you choose the common sense view doesn’t qualify you for the bench. You’ve been a lawyer long enough to know that commons sense is often the first victim.

    However, if you actually try to stick to what the Constitution says, the decision this week in this case (unlike, for instance, the decision in the free speech case) is beyond reproof.

    Until it’s made clear to the people of this country that the civil rights movement, after its initial victories, was transformed from a demand for complete equality into demands for special privileges–thanks mostly the philosophies of victimization and cultural relativism–we won’t be able to address many of the problems in this country.

    kishnevi (6273ad)

  19. I’d recommend Patterico for the court…and to keep on blogging from the bench. At least he would be able to tell us what judges really wear under their robes….

    fmfnavydoc (affdec)

  20. “However, if you actually try to stick to what the Constitution says”
    huh?
    What about original intent?

    AF (4a3fa6)

  21. “Unless your aim was to drive all the whites out of the public schools system.”

    Green follows white, as always

    AF (4a3fa6)

  22. AF, if you really want to stick to original intent, then I’m afraid those darkies would be still be saying “Yes, massa”. But we’ve moved on a bit since then. And there’s this amendment that says no one can be discriminated against by any state.

    You see, keeping people apart because of their race is just as bad, from the constitutional POV, as forcing them together because of their race. Race should be ignored altogether.

    Of course, to actually do what the constitution says runs counter to the social engineering school of law that predominates today.

    As I said in my earlier comment, until people recognize that civil rights transformed itself into a demand for superior treatment, under the influence of cultural relativism and victimization philisophies–which approach was of course adopted by any group that wanted to get special treatment, and human nature being what it is, there’s loads of them–there’s loads of problems in this country that can’t be solved. Education is just one of them.

    kishnevi (cc2e2d)

  23. “You see, keeping people apart because of their race is just as bad, from the constitutional POV, as forcing them together because of their race. Race should be ignored altogether.”

    Read th history of the Reconstruction Amendments Kish.
    And I linked to a discussion.

    “As I said in my earlier comment, until people recognize that civil rights transformed itself into a demand for superior treatment”
    That’s bullshit. There’s no ‘superior claim’ involved in these cases.
    I’m not an originalist, but others claim to be

    As an aside: ” cultural relativism” WTF?

    AF (4a3fa6)

  24. There is a cruel irony in THE CHIEF JUSTICE’s reliance
    on our decision in Brown v. Board of Education, 349 U. S.
    294 (1955). The first sentence in the concluding para-
    graph of his opinion states: “Before Brown, schoolchildren
    were told where they could and could not go to school
    based on the color of their skin.” Ante, at 40. This sen-
    tence reminds me of Anatole France’s observation: “[T]he
    majestic equality of the la[w], forbid[s] rich and poor alike
    to sleep under bridges, to beg in the streets, and to steal
    their bread.”

    AF (4a3fa6)

  25. That was Justice Stevens, by the way.

    AF (4a3fa6)


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