By Simon Lazarus,
Public Policy Counsel, National Senior Citizens Law Center

Many Americans have now caught sight of a specter once imagined only by a tiny cadre of legal cognoscenti: A Supreme Court bound and determined to reprise the Court's reactionary role from a century ago, out to squelch progressive policies whatever their source.  In 5-4 decision after 5-4 decision, Chief Justice John Roberts has scorned the kind of "modest," "consensus"-seeking course he charted in his confirmation hearing and a number of media interviews following his confirmation. In the most significant of these 5-4 decisions, the school integration decisions announced July 30, Roberts and his allies audaciously underscored that they will use every tool at their command to defeat government-sponsored race-conscious methods of promoting ethnic diversity in elementary and secondary education – even though that goal is broadly supported by the public and by substantial elements in both political parties, and was approved by duly elected local school boards in Seattle and Louisville.

As they push aside the debris from the Roberts Court's second term, what should liberals do and say? Here are three quick and simple suggestions.

First, with respect to the school integration cases specifically, stop casting the issue as one about race, and disengage from backward-looking debates about whether the legacy of Brown v. Board of Education is better served by race-conscious remedial desegregation or by Roberts' concluding sound-bite, "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race." The key issue is, going forward, what business do five unelected, life-tenured judges have dictating policy, in this case policy for ensuring that our institutions harmoniously accommodate an increasingly heterogeneous population -- especially when those judges lean well to the right of an electorate trending center and left?

Second, wherever this hard-right bloc is coming from, it isn't the law. In the school cases, Chief Justice Roberts offered no pretense of deriving his argument from the text of the Fourteenth Amendment, much less from the record of what the framers of the amendment intended when they wrote it. And no wonder. That text guaranteed African-Americans, and all other persons, equal protection of the laws. These words were intended to mean what they said: they outlawed practices that systematically rigged state legal systems to facilitate the suppression of blacks; there is nothing in that text that would bar Congress and state governments from ever referring to race in writing laws to attain the goal of equal protection.

On the contrary, as legal and historical scholars -- 60 of whom signed an amicus curiae brief to the Court -- have exhaustively demonstrated in scores of books and scholarly articles, Reconstruction Congresses, in addition to adopting the Thirteenth, Fourteenth, and Fifteenth Amendments, aggressively promoted racial integration as a goal and deployed race-conscious measures to achieve it.  Principled conservatives acknowledge that the Reconstruction generation "originally" understood the Fourteenth Amendment to promote equality for blacks and posed no 'absolute," across-the-board bar to race-based classifications. Chief Judge Michael Boudin of the First Circuit Court of Appeals, a widely respected Bush I appointee, observed in a 2005 case that a Lynn, Massachusetts integration plan similar to those in Seattle and Louisville "is far from the original evils at which the Fourteenth Amendment was addressed . . . [which were] the oppression of one race by another." In the case itself, in the Ninth Circuit decision under review by the Supreme Court, Judge Boudin's approach was endorsed by prominent conservative and Reagan appointee Alex Kozinski.

In dispatching these legally conscientious Republican jurists, both Roberts' and Kennedy's opinions of yesterday betray keen awareness of their frailty on the basic law applicable to the case. Neither makes virtually any mention of the relevant text, its appropriate and logical construction ("strict" or otherwise), or its history.

Third, again, contrary to the earnest commitments offered by Chief Justice Roberts pre-confirmation, these decisions embody the direct opposite of "judicial restraint" and respect for democracy. Justice Breyer's elaborate dissent details the long history of segregation and resegregation which the Seattle and Louisville school districts had sought to remediate, elaborating the options that had been tried, abandoned, allowed, disallowed, failed, and succeeded, however temporarily or partially. Roberts in his opinion literally disdains to consider these facts. In essence, he semantically dismisses the legitimacy of the districts' goal of promoting diversity by relabeling it "racial balance" -- thereby excusing himself of the annoyance of taking into account the circumstances faced by the school officials, and the electorates who put them in office.

For liberals to take back the federal judiciary -- and hold it -- will be a long slog. Success will require following Justice Breyer's lead and enlisting voters in communities like and in that cause.   

Copyright: The American Prospect.  The original article can be accessed at http://www.prospect.org/cs/articles?article=the_most_activist_court