Rare Sighting: Reason in the Law
7/11/2007 12:01:00 AM - Paul Greenberg
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.
In a separate opinion, Justice Anthony M. Kennedy, always eager to elaborate
the obvious, or at least complicate it, explained that the goal of racial
balance might still be sought by various means - drawing attendance zones,
for example, or tracking students by race to see if all are served equally.
But he drew the line at discriminating against any individual student
because of race. Fair enough, and constitutional enough in hazy theory.
(Justice Kennedy is no Sandra Day O'Connor, but he does what he can to blur
The really striking opinion in this case was delivered by an associate
justice, Clarence Thomas. His concurrence may prove as memorable as John
Marshall Harlan's great dissent in Plessy v. Ferguson, in which the ideal of
a color-blind Constitution was first pronounced. His contemporary
restatement of Justice Harlan's thesis rang with the same moral authority,
but Clarence Thomas' words were reinforced by personal experience. Maybe
that was the source of their moving eloquence.
In response to the argument that racial discrimination is now permissible
because it's for a good cause - racial balance - Justice Thomas pointed out
that the Constitution does not waive the rights of the individual because an
elite has decided its motives are pure. He noted that advocates of racial
preferences in the last century also considered their separate but equally
exalted aim (social stability) worth the ignoble means.
Neither good intentions nor stirring shibboleths (Diversity! States'
Rights!) can in the end justify denying American citizens, even a small
minority of them, the rights guaranteed by the Constitution of the United
States. Changing the color of the race involved does not change the
principle at stake. To quote Justice Thomas: "What was wrong in 1954 cannot
be right today."
After half a century of various detours and delays, the original spirit of
Brown v. Board of Education shines again, so brightly that those who
consider their own concept of the ideal society the highest consideration,
may be blinded by the light. Shielding their eyes, they try to take refuge
in various and complicated sophistries that are a credit to their ingenuity
- but not to their consistency. What was wrong in 1954 cannot be right
today. That brightness, a rare sighting after all these dimmed years, has a