Since Nixon nominated Warren Burger as Chief Justice, one of the chief conservative domestic policies has been an effort to turn back the clock on the civil liberty advances afforded us by the Warren Court. While the urge for “law-and-order” judges in the 70s has, more recently, given way to “strict-constructionism,” the effort to eliminate many of the evolved rights of the Warren Court has continued unabated with the resurgence of the right in the latter-half of the twentieth century. In fact, since the days of Scalia, and certainly Thomas, so-called constructionists have been willing to side-step fundamental doctrines such as stare decisis for a desired result. Accordingly, since Bush’s election, many on the left—and, indeed, many citizens rightly proud of their civil liberties, such as this author—have feared the repercussions of his power to fill any vacancies that may arise on the Supreme Court.
Then, naturally, the vacancies came.
First, Roberts.
Then, Alito.
While Alito provided a modicum of relief for civil libertarians, due to a spate of his prior opinions, particularly on First Amendment issues, his contentious nomination hearings accurately forecasted his subsequent slide to the right upon ascendancy.
*****
While I was surprised about the recent Gonzales opinion, which upheld the constitutionality of the Partial Birth Abortion Ban Act (2003), the inherent ambiguity in the legalese “undue burden” almost guaranteed a successful challenge to many abortion practices. Nevertheless, two factors buoy my continued desire for true female personal autonomy in the United States.
First, I trust that the pace of medical technological progression—as well as pharmaceutical advances coupled with greater openness of availability, i.e., the wide-scale carrying of the morning-after pill at national pharmacies—avails women of a lesser degree of reliance upon partial-birth procedures.
Second, I was fortunate to witness a debate produced by the Harvard Federalists Society at Harvard Law during the Alito nomination hearings. I was pleasantly surprised of the force and cogency of Professor Alan Dershowitz’s arguments that, in fact, the fear of a repeal of Roe v. Wade by the newly enlarged conservative bloc on the court was misplaced. Dershowitz contends that—besides the fact that civil groups such as the ACLU would closely monitor any opinions tip-toeing in that direction and mobilize their legions—an outright repeal would overturn so many decades of stare decisis and cultural norms that it would be an all-time call to arms for liberals, rendering a statutory, political, and, later, judicial backlash with a probable Constitutional Amendment resulting.
So, while the new conservative court has shown an unabashed willingness to kick stare decisis aside (Stenberg had deemed bans on partial birth abortions unconstitutional in only 2000), ultimately, I reserve judgment on the Gonzales v. Carhart opinion.
*****
More concerning, in my opinion, is the court’s opinion in the matter of Parents Involved in Community Schools v. Seattle School District No. 1, et al. Briefly, this suit is a challenge to the use of race as a criteria in the evaluation of students in voluntary desegregation plans by school district. The plaintiff-parents contend that such criteria violate the rights afforded their children under the Equal Protection Clause of the Fourteenth Amendment in that they cannot attend the closest schools to their homes due to their race.
Seattle—and the other municipalities involved—used race only as a criteria to advance the express purpose of providing an integrated educational environment to its students. Seattle, like so many American communities, suffers from tacit segregation on socio-economic lines—a lasting effect of the failures of reconstruction and broken promises of the Civil Rights era.
Unbelievably, the Roberts 5-4 conservative majority—stocked with professed “strict-constructionists” of the first-order, mind you—twisted decades of jurisprudence and obvious legislative and Constitutional intent to reach one of the most politically-decided opinions I can recall since Gore v. Bush.
As the New York Times pointed out in an op-ed, the Equal Protection Clause of the 14th Amendment, “which was adopted for the express purpose of integrating blacks more fully into society,” is now being wielded as a tool for “protecting white students from integration.” (http://www.nytimes.com/2007/07/05/opinion/05thu1.html?_r=1&oref=slogin)
I believe the successful, liberal, public education of our children is our strongest answer to a world of uncertainty and American decline. There can be no doubt that true integration must be practiced in each of our communities for public education to succeed in the manner in which we need it to. That, for me, is the truly disappointing aspect of the Parents v. Seattle decision. To think that it may be the cornerstone upon which decades of likeminded jurisprudence is laid is frightening, to say the least.
Lest one dismiss this as an issue in the abstract, it has already produced growing ripples in New England. The city of Lynn, Massachusetts has, like Seattle, de facto housing segregation, with white children primarily residing in the north and minority children residing in the south. Accordingly, Lynn enacted a voluntary desegregation plan for the benefit of all of its children that applies to its 18 elementary schools.
Parents in Lynn who challenged this plan 8 years ago and failed, have revived their efforts on the strength of the Supreme Court opinion. Ultimately, the Parents v. Seattle opinion could strike the death-blow to integrated educational environments in “roughly 20 school-assignment plans in Massachusetts, as well as the Metropolitan Council for Educational Opportunity , which has bused minority students to affluent suburban schools since 1966.” (http://www.boston.com/news/nation/articles/2007/07/05/challenge_to_lynns_race_policy_is_revived/)
In fact, in Justice Stevens’ blistering dissent, he rightfully addresses the court’s stunning reversal of precedence by pointing to the Supreme Court’s “approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system.” See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d 729. Stevens continues:
“Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoalsin the Fourteenth Amendment.” (http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf, p. 105)
Founder, though, may be too lenient a word. I suggest an all out shipwreck may be approaching. Practically, this means what it always does to the underprivileged: the rich get richer. Stevens illustrates the amazing lengths today’s conservative court is willing to go to reach a desired result in stark terms by concluding his opinion as follows:
“The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” Id., at 108.
Stevens is not alone in his distrust of these developments, even if his dissent stands as such. The Breyer dissent, in which he is joined by Stevens, Ginsburg, and Souter, concludes in stark terms that speak to disillusionment with the new court’s efforts to forestall, if not outright destroy, the social and cultural gains of the middle of the 20th century:
“Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live . . .
. . . The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”
*****
One can only hope that such Herculean efforts to side-step history, intent, tradition, and precedent are not wielded in as pompous and cavalier a manner as it was in this matter. If the Roberts court continues with this conservative 5-4 majority, the United States as we know it could be a very different place in 15 years. I suppose Bush has left us with something lasting other than a bankrupt Treasury.
The full Parents Involved in Comm. Schools v. Seattle School Dis. No. 1, et al. opinion: http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf.
(**UPDATE** Here's an interesting take on the current 5-4 deadlock: http://www.nytimes.com/2007/07/26/opinion/26smith.html?_r=1&bl&ex=1185854400&en=37d7f499b47e3164&ei=5087%0A&oref=slogin)
