The Roberts Court: The Struggle for the Constitution (17 page)

For civil rights advocates, historians, and others who had supported the two school plans, to have lost in the Supreme Court was painful enough; but particularly upsetting, even “abominable,” said John Payton, then president of the NAACP Legal Defense Fund, was to see how Roberts, in a brief portion of his opinion, “twisted” the meaning of
Brown
, the landmark decision ending school segregation.
⁴

After Roberts had completed his analysis and conclusion in the school cases, he wrote, almost as an afterword in three brief paragraphs, about the debate between the two sides in the cases as to who was more
faithful to the heritage of
Brown
. To support his view of
Brown
—that it prohibited classifications on the basis of race or color—Roberts quoted from the briefs of the lawyers representing the schoolchildren in 
Brown
 and from the oral argument of one of those lawyers, (the late senior federal judge) Robert Carter of the NAACP Legal Defense Fund.

Roberts cited Carter, who said in 1952: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Roberts then wrote, “What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis? Before
Brown
, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

Justice Stevens wrote a short dissent directed at Roberts’s use of
Brown
: “There is a cruel irony in the Chief Justice’s reliance on our decision in
Brown v. Board of Education
. The first sentence in the concluding paragraph of his opinion states: ‘Before
Brown
, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France’s observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, the Chief Justice rewrites the history of one of this Court’s most important decisions.”

Stevens ended his dissent by stating: “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with
today’s decision.” Sitting on the Court back then was William Rehnquist, for whom Roberts would clerk five years later.

Shortly after the decision was issued, three of the lawyers in
Brown
, including Carter, were interviewed, and they accused Roberts of misinterpreting their arguments and the meaning of
Brown
.

The
Brown
lawyers explained that they and the
Brown
decision did not take the position that the Constitution prohibited all racial classifications. Instead, they had argued that the Constitution prohibited the use of racial classifications to subjugate blacks, which was the position and interpretation of
Brown
taken by Breyer and the dissenters in the two school cases.

“All that race was used for at that point in time was to deny equal opportunity to black people,” Carter told
The New York Times
. “It’s to stand that argument on its head to use race the way they use it now.” And Jack Greenberg of Columbia Law School added, “The plaintiffs in
Brown
were concerned with the marginalization and subjugation of black people. They said you can’t consider race, but that’s how race was being used.”
⁵

And while it was not a cruel irony, it was certainly ironical and highly unusual for a justice to quote and rely on the lawyers who argued a case for the meaning of a Court precedent. Both Roberts and Alito had emphasized during their Senate confirmation hearings that when they had advocated certain often controversial legal positions as lawyers, they were only representing their client, the government, not their own personal views.

The Seattle and Louisville cases exposed a great divide among the justices over race under the Fourteenth Amendment’s equal protection clause. Four justices—Roberts, Scalia, Alito, and Thomas—adopted the view that the Constitution is color-blind and prohibits almost all use of racial classifications. Four justices—Stevens, Souter, Breyer, and Ginsburg—saw a constitutional distinction between the use of race that seeks to exclude and that which seeks to include members of minority
races. Breyer wrote: “I can find no case in which this Court has followed Justice Thomas’ ‘colorblind’ approach.”

In the middle was Kennedy. “The statement by Justice Harlan that ‘Our Constitution is color-blind’ was most certainly justified in the context of his dissent in
Plessy v. Ferguson
[the 1896 decision upholding “separate but equal”] . . . . and, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle,” he wrote. The enduring hope, he added, is that race should not matter; but “the reality is that too often it does.”

Kennedy has written forcefully against the use of racial classifications in cases involving affirmative action, voting rights, and reverse discrimination. In fact, he has never voted to uphold an affirmative action plan. But Kennedy, say his former clerks and others, is an idealist, and his somewhat more moderate views in the school cases may reflect his hope that schools will not just educate but will foster interracial and interethnic relationships.

“He said school boards may pursue the goal of bringing the races together,” emphasized Payton of the NAACP Legal Defense Fund, shortly before his death. “He embraced this as a compelling interest. It has a democracy component.”

Whether Kennedy would be a moderating force in other contexts concerning race remained to be seen, and another clue could come very soon.

During the Court’s deliberations in the school cases, the outcome was not a foregone conclusion, according to some former clerks. “I remember there being discussions about Kennedy and how he might be persuaded,” said one.

Kennedy had been fairly specific about what troubled him in Roberts’s draft opinion, said another clerk, and yet Roberts, who could have had a majority if he had moderated his draft, would not change it. “There was pretty extreme language in the plurality opinion that indicated to me that perhaps at least as to race, there was a certain recalcitrance
that didn’t look like the person who sat before the Senate Judiciary Committee,” another clerk added.

Roberts, joined by Alito, now had made clear his view of racial classifications, and that view was remarkably similar to his view during his foot soldier days in the Reagan administration. He did not repudiate the Court’s affirmative action decision in the Michigan case that O’Connor had written, but he limited it to the circumstances of that particular university case. He and the rest of the Court would fight another day over the vitality of O’Connor’s ruling. And that day was coming fast. On February 21, 2012, the Court agreed to once again consider the role of race in a university’s admission policy by granting review in a case involving the University of Texas.
⁶

Given the strong views expressed by Chief Justice Roberts and those who joined him in the school cases and those who did not, the Court’s divide on race is likely to continue even with the recent additions of Justices Sonia Sotomayor and Elena Kagan. Kagan’s views are unknown, but Sotomayor, who succeeded Souter in 2009, gave a brief insight into her thinking during a January 2011 speech at the University of Chicago Law School. She called “too simple” Roberts’s statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

“I don’t borrow Chief Justice Roberts’s description of what color-blindness is,” she said. “Our society is too complex to use that kind of analysis.”

The bitterness at the end of the first full term of the newly constituted Roberts Court stemmed primarily from feelings—justified or not—among justices to the left of center that Roberts’s publicly stated commitment to greater consensus through narrow decisions and, in particular, to respect for precedents, had dissolved in the face of result-driven judging.

To conservative Court watchers, the Court’s sharper turn to the right was “quite predictable,” but did not accomplish all that was necessary, according to former Reagan Justice Department official Michael Carvin,
partner in Jones Day. Carvin, who in the summer of 2012 lodged a major challenge to the nation’s premier civil rights law—the Voting Rights Act—described the Court’s conservative justices as being in a “holding pattern.” They will need one more vote “to complete the sweep and a return to the rule of law,” he said. Carvin left unsaid that one more vote was needed because of the unreliability of Kennedy.
⁷

Regardless, the Court on that final day of the 2006 term appeared exactly as Roberts had hoped then, and continues to hope, it would never seem to be: an ideologically riven, political institution.

The Seattle school contingent—Korrell and his client Kathleen Brose, and the school district’s lawyer, Madden—knew the last day was decision day in their case. Korrell and Brose were at home when the decision was announced, and Madden was in his office despite the three-hour difference between the east and west coasts.

“The phone started ringing at seven and didn’t stop the whole day,” recalled Korrell. The lawyer liked Roberts’s opinion but found Kennedy’s opinion “frustrating” because, he said, “it’s obtuse in an area where we all benefit from clarity. Both sides are parsing Kennedy’s opinion as to what they are allowed to do and aren’t.”

The truth is there are some schools in Seattle that are very good and some that are hard to improve, he added, and there is political pressure to do something—pressure from minority communities not being well served by these schools. “The something the school district was doing was letting them bump kids out of schools. It’s politically expedient but leaves the problem. Having that device [the race tiebreaker] taken away was appropriate.”

The Court’s decision meant to Brose a return to neighborhood schools, even though her community still did not have one to call its own.

“Something people don’t understand about this school choice issue is when you give parents the choice to pick a school, and it’s not necessarily your neighborhood school, people will pick schools that have all these special programs,” she said. “If a school is perceived not to do well, people who can will abandon it. So you create these schools with issues,
and this is what happened. But when you have a neighborhood school in Seattle, you actually have better diversity because you get a mixture of kids and parents like me get in to volunteer. Neighborhood schools work.”

Madden had been resigned to losing the case but the decision still stung, particularly Roberts’s claim that the school plan imposed a huge individual burden for little benefit.

“If you looked at the open choice program, there was really only two years’ worth of information in the court record and you could say that,” he said. “If you looked at open choice as the end or nearly the end of desegregation measures that started in the 1960s, that peaked with the 1978 mandatory busing plan and then were reduced in intensity and frequency over the ensuing twenty years, then I don’t think you could readily say it did little.”

Seattle, he added, was “ripe for plucking as a de jure segregation” case in the seventies, which was why it was threatened with a lawsuit, why the Carter administration threatened to withhold federal funds, and why the school district turned to mandatory busing. “And Roberts says, ‘Well, Seattle never operated a segregated school system.’ It depends on who you ask.”

Still, the “abiding thing” Madden said he learned from the case was no matter what side parents are on, it is all about what they think is the best for their kids. “The interest groups and the academics all have their respective points of view. But the universal thing for the parents is they’re there trying to achieve what they think is best for their kids at a particular point in time, and doctrine isn’t all that important to them.

“If Harry’s clients could have used race to get them into the school they wanted, they would have been fine with it.”