Reports of the death of common sense in American law may have been premature. It seems to be making a comeback.
As this term of the U.S. Supreme Court reached its final week, there were signs that the justices are breaking from the mindless muddle that characterized the O'Connor Court. (As the swing vote on the court, Sandra Day O'Connor seemed to think it her duty to avoid taking clear positions.)
The turn to clarity since Justice O'Connor's departure was most evident in the court's 5-to-4 decision in a couple of school integration cases, one each out of Seattle and Louisville. It seems some white students there had been turned way from schools they otherwise would have been entitled to attend - because they were the "wrong" color. Just as nine black students, now known as the Little Rock Nine, were denied entrance to that city's Central High School back in 1957.
Once upon a long-ago time, some of us thought Brown v. Board of Education would end racial discrimination in the public schools. But half a century later, it was still being practiced - if against a different race.
How could that result have flowed from Brown?
In order to break up the old segregated order, it was thought necessary to take students' race into account when making school assignments - as a temporary means to an end.
Once justice had been done and the schools were integrated - or if they'd never been segregated by law in the first place - assigning students to schools on the basis of their race wouldn't be necessary, or constitutional. At least that was the theory.
But the means became the end in school districts like those in Seattle and Louisville. This is what comes of placing a collective social goal (racial balance) ahead of the rights of the individual.
This time the U.S. Supreme Court wasn't buying. To quote the majority opinion delivered by its still new chief justice, John Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
In any field but law, such an observation would have been recognized as a tautology, self-evident, too obvious to need stating. But in the sophisticated circles in which constitutional lawyers ply their trade, the chief justice's words rang with the power of a newly discovered insight. Imagine: A equals A! The law had finally caught up with simple logic.
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