Supremely Bad Decisions
Chief Justice John Roberts's astonishing claim in the Supreme Court's final ruling of the term, that he is "faithful to the heritage" of Brown v. Board of Education--while explicitly invalidating desegregation programs based on race--shows not just how far the Court has swung to the right but the profound corruption of ideas and language that motivate the Court's activist, conservative bloc.
Indeed, the entire final week of the Supreme Court term amounted to a grudge match on some of the right's longest-held policy grievances. Antitrust and New Deal-style business regulation? Strike down the nearly century-old ban on manufacturers fixing minimum prices! Free speech? Let school principals suspend a student for off-campus anti-drug satire--and along the way undo student free-speech rights granted during the Vietnam War! Racial discrimination? Ban race-based remedies for race-based segregation!
As the last week's first decisions came down--on the student speech case, Morse v. Frederick (a k a the "Bong Hits 4 Jesus" case), and on the campaign finance case--it was tempting to see the Court's conservatives as locked in contradiction, divided over the principles of free speech. How can the Court on the one hand adopt the view that the First Amendment prohibits McCain-Feingold's limitations on barely masked campaign ads, while on the other hand allow a principal to punish a student for a whacky banner unfurled during an Olympic Torch run?
But those two decisions, seemingly at odds, have one thing in common: Far from being paragons of judicial restraint, the Supreme Court's majority actively sided with the interests of power. In Morse v. Frederick, as Justice Stevens noted in his dissent, the majority seemed intent on reversing Tinker v. Des Moines, the landmark free-speech case that gave students the right to protest the Vietnam War by wearing armbands to school. "Carving out pro-drug speech for uniquely harsh treatment," Stevens acerbically noted, "finds no support in our case law and is inimical to the values protected by the First Amendment."
As for campaign finance, labor unions may be cheering, for now, their new freedom to support candidates with advertising up until election day, but there is no doubt that corporate interests have greater resources and will use this new platform to exert their voices in unprecedented ways. Far from being an expansive interpretation of free speech, it amounts to a constricted view of the First Amendment, turning on its head the Framers' explicit "original intent" to insure access of all to the arena of political debate.
And what about the Louisville and Seattle desegregation cases? There is nothing new, after all, about the Supreme Court undermining Brown. That has been going on for a generation, and by the fortieth anniversary of Brown in 1994, it was already clear that the Supreme Court's role as an engine of desegregation was over. Resegregation has been going on for a generation, largely beyond judicial reach. So too have debates whether to reinvent integration in economic class terms.
Indeed, the precise impact of the Court's ruling on the Seattle and Louisville cases remains unclear. Seattle, with a proud municipal commitment to ethnic and racial diversity, is already talking about "race-conscious" but not racially determined measures that might meet the Court's new standards. Justice Anthony Kennedy gave Roberts his majority, but on the other hand Kennedy wrote what may turn out to be a poison-pill concurrence. Taking sharp issue with Roberts's comprehensive dismissal of race-based remedies, Kennedy called the Chief Justice "profoundly mistaken" in his view that "state and local school authorities must accept the status quo of racial isolation in schools."
What is new is the Roberts Court's comprehensive and direct assault on Brown's insistence that race-conscious discrimination requires race-conscious remedies. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," wrote Roberts in an Alice-in-Wonderland formulation that provoked a rare emotional rebuke from the usually Olympian Justice Breyer: "It is not often in the law that so few have so quickly changed so much."
What has changed, Justice Breyer seems to be saying, is the Supreme Court itself. What is so evident in all this week's cases is an almost gleeful judicial activism aimed not at any particular policy but at the basic configuration of power in this country. Antitrust means antiregulation, free speech means muzzling student protest, desegregation means maintaining segregation. That is the meaning of this week's rulings, and that--it is clear--is the meaning of the Roberts Court.