As gentle readers no doubt know, the Roberts Supreme Court has delivered a raft of 5-4 decisions on controversial topics. We make two broad observations about them.
First, if anyone doubted that the Supreme Court is a genuinely political entity, no less than Congress or the Presidency, these decisions and the reaction to them will illustrate otherwise. No one can doubt that every justice calculates the political impact of every opinion that comes from the bench, no matter how carefully those opinions are couched in the jargon of judicial objectivity. The rhetoric in the delivery of decisions, concurrences and dissents shows nothing short of conscious alignment with the polarized climate of the present body politic.
However, there's no way that the Roberts decision came down as a means of promoting Republican electoral prospects in the next election. We think that this decision pretty much assures that 90% of African-American voters will continue to vote against the Republican party, this despite the fact that many in that majority legitimately feel underserved by the very public schools whose status quo the decision challenges and for which the pursuit of integration by racial formulae has been a fig leaf to cover the continuing inability to address the real needs of at-risk students.
Note well that at last night's Democratic Candidate Forum at Howard University (and a more poignant place for a Democrat campaign event after the school integration decision could not be imagined), candidates took turns denouncing the decision. We give Bill Richardson an F for his shameless dragging out of his Latino background as his bona fide on this discussion, reminding him that he is also the son of a privileged WASPish father and that second-generation Latinos have had significantly less trouble integrating into the mainstream culture in this country than have African-Americans.* We give Hillary a D for her tired, shrill cadences of declamation that remind us yet again of being beaten with a wire clothes hanger by Joan Crawford. We give Barak Obama an A for bringing together in a single statement the necessity of ongoing public action to address the legacy of racism and redoubled internal efforts within minority communities to do the same. But Rs can expect to be hammered on this issue for at least another decade.
Second, the Roberts majority of five has been careful nevertheless to ground their most important rulings in large constitutional and legal principles that are hard to argue with. The ruling on political ads effectively negates the McCain-Feingold bill's restrictions on the real issue of free speech, namely the freedom to engage in political speech without restriction. The "Bong Hits for Jesus" ruling doesn't negate that upholding of principle. Rather, it simply recognizes that children don't have the same rights as adults. This "turns back the clock" on recent application of free speech doctrine to silliness and restores the sanctity of political dialogue, especially where elections are concerned. The ruling on using race in school assignments upholds the notion that race should play no role in the decisions of government entities, the ideal set aside in certain earlier decisions to allow remedial action to redress the injustice of racism's legacy.
On this difficult point, we assert that it will never be possible to pronounce when it is no longer "necessary" to address racism's legacy with remedial public policies. Some blend of remediation and color-blind idealism will probably continue for generations. We expect our grandchildren to continue to be frustrated by this dilemma.
Third, these decisions probably don't ignore the practicalities of the issues to the degree that their opponents allege. It's delusional, for example, to think that McCain-Feingold in any way improved the level of political discourse during the last election cycle, or that it lessened the influence of money. It's delusional to think that public schools are worse off because they aren't open forums for disruptive and sophomoric speech acts, that Johnny can't read because of the stifling of free expression in his fascist school.
Perhaps most controversially, we'll say that coercive measures to promote integration in schools are probably counterproductive to the larger objectives of such integration. As the experience in Cincinnati Public Schools over the last decades would illustrate, in our Seldom Wrong opinion, public school districts with significant populations of minority students, especially poor minority students, have an interest in retaining as residents in their districts and participants in their schools those families who have the economic power to exercise choice over where their children will attend. Denying such families a reasonable choice of public school options simply sends them to the private sector or out of the district altogether. CPS has shown that it can achieve a measured degree of racial and economic integration by allowing school choice and not overtly restricting students from such choices because of racial formulas. Few things alienated families more than being told that they couldn't enroll in this or that school because of the social construct of race. That's why districts seeking integration have largely abandoned specific racial formulae.
Fourth, we think that the Roberts court's decisions restore the notion that adults are adults, and not in the sense asserted when free-speech doctrine is applied to lap dancing and child pornography. To wit: adult voters should be able to decide whether to listen to a campaign advertisement, adult educators should be able to decide what goes on in their schools, and adult parents should be able to decide where their children attend school, especially if they don't like what the adult educators are doing at their current schools. These adults won't always make the right decisions, but they won't do any worse than the adult who works for the government because he got a master's degree in public administration because his LSATs were too low for law school.
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*We hereby recant our tepid endorsement of Richardson as a D we could live with. His campaign, since becoming official, as been the most blatant example of unprincipled pandering to the party base that we can recall. Besides playing on his ethnicity without dignity, Richardson has promised an instantaneous 100% withdrawal from Iraq and a menu of big spending programs with more items than the menu at Price Hill Chili.
5 comments:
The judicial activism of the last half century is perhaps the best example we have of the mess that can result from allowing the end to justify the means. Why anyone would ever think that a policy of discrimination against one segment of society could be corrected by instituting a policy of discrimination against another--no matter how well intentioned--is beyond my comprehension. There are many acceptable ways to bring about equality. Injustice is not one of them.
In all this I am forced to take seriously the legal notion of remediation: actions taken to bring an element of redress to those wronged in the past. But the outcome hasn't delivered on the promise in this case, exposing instead the two-wrongs problem you rightly raise.
I think the reason "the outcome hasn't delivered" is because the "remedy" went well beyond the redress of past wrongs. Had the courts resisted the temptation to "correct" the racially-motivated wrongs by implementing a policy of reverse discrimination (which, by the way, is clearly unconstitutional) and, instead, exercised a little legal imagination and restraint, they wouldn't have alienated such a large segment of the population.
Why, for instance, couldn't they have (1) outlawed segregation without demanding forced integration (which inevitably leads to reverse discrimination in hiring practices and college admissions), (2) outlawed an inequitable distribution in the quality of public education across districts (allowing the individual states to determine how best to achieve equitability), (3) outlawed an inequitable distribution in the quality of other public services across districts (again allowing the individual states to determine how best to achieve equitability), and (4) outlawed unfair hiring practices across districts (allowing the individual states to determine the best method of achievement). In this and no doubt many other ways, the courts could have addressed the injustice of racial segregation without exchanging it for another kind of injustice.
But no, they decided that they were the experts at policymaking and, in effect, took the states into a kind of judicial receivership (requiring mandated busing, racial preferences in hiring, etc., etc.). As a result, they institutionalized their own rather lame notion of justice. Thanks to this enlightened oligarchy, we'll be in the business of damage control for some decades to come.
P.S. On another note, I agree with SWNID about Bill Richardson. Initially, I too felt comfortable with him. But not now. I suppose you can take the boy out of the Clinton administration, but you can't take the Clinton administration out of the boy.
I think the broad historical answer to your "why nots" is that at the time of Brown v. Board and for quite awhile thereafter, many state governments simply couldn't be trusted with discretion to implement a genuinely equal educational system. "Receivership" is exactly what they got as a result. And now we have history to show that courts are no more able to do what executives and legislatures fail to do.
But in the meantime, Brown became the heroic story of the judicial branch's advancing the cause of freedom. Thereby it also became the model of judicial activism that believed that for every wrong there is a supreme court decision that can make it right.
I understand that the states couldn't be trusted to implement a genuinely fair educational system, but, then, neither could they be trusted to implement what the courts actually ordered (mandated busing, racial preferences in hiring, etc.). Hence, the courts had to issue further orders requiring the federal government to ensure that the original orders were carried out by the states. But if the courts could enforce their own policies (such as busing and mandated integration) with the threat of government sanctions, why couldn't they enforce the "Why nots?" of my earlier post, in the same way?
My own suspicion is that (1) they were bored with the job of simply interpreting the Constitution, and, as a result, couldn't resist the temptation to secure even more power over the public than they already had, (2) they thought they were smarter than the state legislators (which they probably were) and, for that reason, were better equipped to figure out what needed to be done (which they probably weren't), (3) they felt pressure to do something that had immediate and obvious consequences, and (4) they saw it as a way to take the moral high ground without having to suffer any negative effects, being situated, as they were, far from the social fallout of their decisions.
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