Thursday, June 28, 2007

Supreme Court Overrules Brown v. Board???

The emerging theme of the Roberts Court is what I'll call disingenuous respect for precedent. In a number of key cases so far this Term, the Court has purported to follow earlier precedents while issuing rulings that are pretty hard to square with those rulings. The most recent example is Hein v. Freedom From Religion Foundation, Inc., in which Justice Alito, for the Court, "distinguishes" the Flast case on the ground that taxpayer standing is permitted in Establishment Clause cases challenging legislative appropriation of funds but not executive expenditure of those funds. (Yeah, and the VP is not part of the executive branch.) The most egregious example is probably Gonzales v. Carhart, in which Justice Kennedy's opinion for the Court doesn't even go through the motions of explaining how the federal "partial birth" abortion ban's failure to include a health exception is okay when a Nebraska statute's wasn't. (He might have said that Congress gets greater deference than the Nebraska legislature but he appeared to reject this argument.)

Thus we come to today's anticipated rulings in the Seattle and Louisville voluntary integration cases. During the oral argument, CJ Roberts suggested that Brown v. Bd REQUIRES the Court to strike down any use of race, even where, as in these cases, there are no majority "victims" of the program (as there arguably are in conventional affirmative action cases). This strikes me as a very pernicious idea, but at least it's an open question after Brown and later cases whether race-conscious voluntary integration is constitutionally permissible. Dicta in early 1970s cases clearly approves such measures as constitutionally permitted but not required, while the logic of the Court's later color-blindness cases call that principle into question (although color-blindness is called into question by the University of Michigan cases, and the Michigan law school case is itself called into question by the replacement of Justice O'Connor with Justice Alito. Is your head spinning yet?) Anyway, the wiggle room in the doctrine means that no matter how bad today's decisions may turn out to be in other respects, they probably won't be susceptible to the charge that they overrule Brown sub silentio.

I'll report back with a suitably sarcastic (or surprised) headline after the cases are handed down.