As Mike anticipated in his earlier post, Chief Justice Roberts does indeed use Brown v. Board of Education to support the Court's ruling that the Seattle and Louisville integration plans are unconstitutional. "When it comes to using race to assign children to schools, history will be heard," Roberts writes. He then cites language from Brown II (the follow-up case to Brown in which the Court instructed school districts to desegregate "with all deliberate speed") that the equal protection clause requires school districts to "achieve a system of determining admission to the public schools on a nonracial basis."
And if that wasn't enough to make Thurgood Marshall turn over in his grave, Roberts uses Marshall's own brief in Brown to support his opinion. Responding to the school districts' claim that their position is more faithful to the heritage of Brown, Roberts writes that "the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: '[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.'" He then asks, "What do the racial classifications at issue here do, if not accord differential treatment on the basis of race?" This is a bit rich. It's one thing to cite Brown in support of the decision. But to suggest that Marshall and the other lawyers who argued Brown believed in a principle that would invalidate voluntary racial integration is preposterous.