This case demonstrates the extemely different views between the constructionists and the "living" constitutionalists. Let's begin with a quote from Justice Breyer's dissenting opinion (joined by Justices Souter, Ginsburg, and Stevens):
The Founders meant the constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time.
This statement fully reveals the judicial philosophy of the minority. These four argue that context is important in Constituitional law. They argue that the actions of the Seattle and Jefferson County school authorities must be viewed in the context of their historical problems with racial division. This is the same line of thinking they espoused in the campaign finance reform case (FEC v. Wisconsin Right to Life: see my post in June).
The minority's view is further captured by this statement:
The plurality... may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objective. ...By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race.
Justice Breyer's protests are too clever by half. He claims that the objectives are meritorious and widely shared, even by the majority. But this claim is proven false by Justice Thomas' concurring opinion. The School Districts involved here had no intentions or goals with respect to discrimination, inclusion, de facto segregation, or anything else. The truth is that the minority support the liberal political view that racial diversity is inherently beneficial. They would protect public school assignment on the basis of race to ensure that school admininstrators can engineer racial integration.
The majority are impressive on this issue. Justice Thomas' concurring opinion is penetrating in logic and insight. He points out that segregation is an intentional act, and thus, de facto segregation is not segregation at all. It is racial imbalance resulting from a possible multitude of possibilities. He points out the logical inconsistency of Seattle running an African-American Academy with no racial diversity and then using a racial assignment system for the rest of the district. His opinion is a must read.
Let's consider two more quotes from the case:
"As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged." Justice Thomas quoting himself
... 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. Chief Justice Roberts, joined by Justices Scalia, Alito, Thomas, and Kennedy.
What is ironic in this decision is the particular heinousness of the racial systems used in Seattle and Louisville. In Seattle student are assigned based on the binary system of white or non-white. In Louisville it is also a binay system; black or non-black. The perverseness of these systems is completely exposed by The Chief Justice's opinion as well as by Justice Thomas' and Justice Kennedy's concurring opinions. It is unfathomable how the minority could support such systems.
Finally, Justice Kennedy, again the swing vote, tries to find a center. He correctly condemns the dissenters for their desire to create a system of racial allocation that has no logical conclusion. He is devestating on this issue. He disagrees with the majority to the extent that decision making on the basis of race may sometimes be necessary, but only after the decision-makers have exhausted all other possibilities. I believe that the difference between Kennedy and the Court's Plurality is one of phrasing only. Both accept the notion that the state must show a compelling interest and an exhaustion of other possibilities prior to instituting such severe and undesirable measures. The Constitution of the United States clearly prohibits such decision-making by the government. In this Court's view exceptions should be rare, justified, and only taken as a last resort.
After 230+ years, perhaps the Constitution is finally color blind.
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