REVIEW & OUTLOOK
Race and the Roberts Court
Brown v. Board of Education has not been overturned.
Liberals were already wailing about a radical turn in Supreme Court jurisprudence, and yesterday's decisions really brought out the sackcloth and outrage. But the end of this first full term of the John Roberts-Samuel Alito Court presented no sweeping departures, instead hewing to the incremental conservative judging that was its hallmark this year.
The most contentious opinion determined that programs engineering the racial composition of school districts in Seattle and Louisville were unconstitutional. Chief Justice John Roberts, writing for the 5-4 majority, expressed the bedrock principle in a single sentence: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." But the majority was in effect only a plurality. Anthony Kennedy concurred but wrote his own, more narrow opinion that said schools can be "race-conscious," though race can't be the only or controlling factor.
Nonetheless, Stephen Breyer filed an emotional 77-page dissent arguing that the "radical" decision undermined "racial equality" and even the Court's "moral vision." John Paul Stevens excoriated the majority for its "cruel irony" in rejecting racial classifications on the basis of the 1954 Brown v. Board of Education decision, and noted his "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
Justice Stevens is taking liberties with the memory of Byron "Whizzer" White, to name one, and in any event his comment misstates how contorted the Court's race jurisprudence has become. As the Chief Justice and Clarence Thomas explained in separate opinions, the majority's narrow reasoning was consistent with Brown, the 14th Amendment and the Court's multiple precedents on race.
In both the Seattle and Louisville districts, school planners were reassigning kids from their neighborhood schools to new ones based on racial composition, even if it was involuntary. The schools argued that the diversity test established by 2003's Grutter v. Bollinger decision allowed them to sort in this way--i.e., that their programs yielded educational and social benefits.
Chief Justice Roberts argued that these efforts were invalid because the districts "have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme measures they have chosen--discriminating among individual students based on race." Grutter said schools must "narrowly tailor" programs to serve a "compelling interest" based on a "highly individualized, holistic review."
The schools in this case were using "a binary conception of race" that recognized only white or black. As for the Brown precedent, that ruling said it is unconstitutional to deny students opportunities based on government-enforced racial segregation. The segregation here was concocted by the education bureaucrats themselves.
Leave aside the evidence that "diversity," in of itself, does little or nothing to improve student performance. Leave aside also the evidence that the best way to achieve greater racial diversity in schools is through the freedom to choose either public or private schools with vouchers, scholarships or tax credits. At least this decision curbed the excesses of the racial-classification policy that has been promoted by too many courts in recent decades. How far it will be curbed will depend on how lower courts parse Justice Kennedy's concurrence.
Likewise, the Court's 5-4 ruling on price floors in Leegin Creative Leather Products v. PSKS moved in a promising direction but not as far as it might have. Since a previous Supreme Court ruling in 1911, antitrust policy has held that resale maintenance agreements--where manufacturers set the lowest price at which their goods can be sold--were automatically restraints on trade. But economists have since revised our understanding of price floors, concluding that a blanket ban can actually harm competition by favoring some distributors over others and deterring some marketing practices.
"In sum, it is a flawed antitrust doctrine that serves the interests of lawyers--by creating legal distinctions that operate as traps for the unaware--more than the interests of consumers--by requiring manufacturers to choose second-best options to achieve sound business objectives," Justice Kennedy wrote for the majority. But instead of revisiting the dogma itself, the Court only returned the case to its originating circuit. Moving forward, alleged price fixing will be decided on a case-by-case basis, known as the "rule of reason."
Would that that same rule also applied to commentary on the Roberts Court overall. Its incrementalist decisions have moved the Court marginally back to the center from the narrow liberal majority that has dominated for more than a decade. The shift is welcome, but far from radical.
