Wednesday, July 18, 2007

14th Amendment and segregation

The school discrimination cases generated five different opinions, but the ones I wish to discuss are Chief Justice Roberts's, with 3 concurring conservative justices, Justice Breyer's, with 3 concurring liberal justices, and Justice Kennedy's, which therefore decides the case.
The case is about efforts by two different school districts, one in St. Louis and one in Seattle, to overcome residential and income segregation by prohibiting certain white students from attending their preferred school. In other words, it's about when the government may engage in racial discrimination. Roberts says this can be done (1) to correct segregation that can be traced to governmental action, and (2) to implement, in the narrowest possible way, a valid and urgent governmental interest in the goal of the discrimination. Breyer says that governmental discrimination can be done to enhance democracy and social cohesion, and that this reasoning has led to many Supreme Court decisions oking discrimination to combat segregation, whether of government action origin or not.
Kennedy agrees with Roberts’ interpretation of the 14th Amendment, but claims that the government could validly discriminate if it uses ways other than identifying and injuring individuals, which is what it was doing in these cases.
It seems to me that most of the objection to this decision is based on the outcome, and some of it is based on the less than completely candid way in which the majority explained its preference for the narrow over the broad interpretation of acceptable discrimination. But from an outcome point of view, Fish’s argument also has a lot of merit: namely, that the majority’s narrow definition of acceptable discrimination is likely to protect liberal interests in the future, whereas Breyer’s broad definition could easily be used to support unfair State action.
Every Supreme Court case results in two decisions. One decision is about the outcome, as above. The other is about the law, and what matters in the legal decision is both the legal principle that is enunciated, and how the Court reasons its way to that principle. In Bush v. Gore, the legal principle was reached by a lunge for the desired outcome, not through any reasoning supported by jurisprudence. It was a corrupt decision reached by morally corrupt judges, and the five who voted for it will be forever infamous. But the decision in the school cases is far from that. The reasoning by Roberts is scrupulous and plausible, whether one quibbles with certain phrases or not. To me, it indicates that at least Roberts and Alito are prepared to play fair with the Constitution, a document which can be interpreted in many different ways.

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