"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” John Roberts, C.J..S.C. o t U.S.
How John Roberts will be remembered is too early to say - because we don't know how much of the fabric of democracy will survive his hesitance in the face of the barbarians who have breached the gates of the wished for City on a Hill. The Supreme Court appears to be poised to put out the embers of its now 68 year old declaration that the Constitution demands we dismantle the dual systems of education, one black, one white, separate, and unequal.
We know that Roberts's disingenuous claim at his confirmation hearing that a Justice of the United States Supreme Court is like a baseball umpire calling balls and strikes will be remembered for its intellectual dishonest and its damage to genuine discussion of the complexity of judging on a Constitutional Court.
And then there is Citizens United and Shelby County - gutting campaign finance law and the Voting Rights Act of 1965 which waited a century before Congress reacted the "appropriate legislation" called for by the 15th Amendment.
But this year - or this Term of the Supreme Court - will presumably be the final blow to the principle that in order to understand our present we must understand our history - which Roberts notorious aphorism about racial discrimination denies.
Linda Greenhouse, whose brilliant career as a reporter commentator on the United States Supreme Court has now survived two retirements, draws attention to the plain-spoken dissent of Stephen Breyer in the Supreme Court's scuttling of the voluntary Seattle and Louisville public school racial integration plans. Breyer's dissent began:
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954) , long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.
The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing re-segregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.
- GWC September 19, 2022
Among the thousands of cases the Supreme Court has decided, only a handful of dissenting opinions stand out. There is Justice John Marshall Harlan’s solitary dissent in Plessy v. Ferguson, the 1896 decision upholding the doctrine of “separate but equal.” “All citizens are equal before the law,” Harlan objected. “There is in this country no superior, dominant, ruling class of citizens.” Another is Justice Robert Jackson’s warning in Korematsu v. United States—the 1944 ruling that upheld the wartime internment of more than 120,000 people of Japanese descent, most of them American citizens—that the Court had delivered a decision that “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Justice Ruth Bader Ginsburg’s dissenting opinion in the 2013 Shelby County case that eviscerated the Voting Rights Act—throwing out the law “when it has worked and is continuing to work…is like throwing away your umbrella in a rainstorm because you are not getting wet”—has also made it into the canon. The opinion written jointly by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in dissent from Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade in June, is likely to find its way there as well.
Another Breyer dissent, in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, rarely makes such lists today. The decision, which invalidated modest efforts by two public school systems to resist the tide of resegregation, received a fair amount of attention at the time—and so did Breyer’s dissent, which he delivered from the bench on the final day of the Court’s 2006–2007 term for an astonishing twenty-two minutes, the longest oral delivery of any opinion, majority or dissenting, in Supreme Court history.
But memories have faded as other sharply contested cases have filled the Court’s docket. The legal historian Melvin I. Urofsky, in his Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (2015), briefly discusses the case without even mentioning Breyer’s opinion.
Parents Involved is important nonetheless. The question at its heart—whether student-placement policies or, by extension, university admissions programs can ever take account of race—is arguably even more relevant now than it was fifteen years ago. Chief Justice John Roberts’s answer, for himself and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, was no. (Justice Anthony Kennedy wrote a separate concurring opinion.) Invoking what he characterized as the nondiscrimination principle of Brown v. Board of Education—the unanimous 1954 ruling that racial segregation of children in public schools was unconstitutional
—Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
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