The Desegregation Opinions: Justice Stevens' Dissent

[Other posts in the series:

Blogand Media Roundup

Reaction to Justice Thomas' concurrence

Reaction to Justice Breyer's dissent

Reaction to C.J. Roberts' opinion

Reaction to Justice Stevens' dissent

Reaction to Justice Kennedy's controlling concurrence

Opening thoughts (Parts I and II)]

Stevens' dissent was short, so I won't excerpt it extensively. There is some anger and a lot of sadness in Stevens' words. In many ways, it is the dissent I felt I would have written had I been in the court. It seems to me that there was more here before Stevens' pulled himself back from the precipice--the opening and closing foreshadow a much darker opinion that would have all but accused the plurality of trying to overturn Brown. Here's how he opens his dissent:

There is a cruel irony in THE CHIEF JUSTICE's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." Ante, at 40. This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court's most important decisions. Compare ante, at 39 ("history will be heard"), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) ("It is a familiar adage that history is written by the victors").

The France quote is one of my favorites, and it is fitting here. This is fire from Justice Stevens--and rightfully so. I suspect that in his first draft, there was a lot more in this vein. But by his closure, he is burned out, and his last sentence--understated as it is--sends chills through me:

"It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

Though this is almost certainly untrue (Rehnquist at least would have easily been on board with this opinion), the sentiment comes through nonetheless. Stevens knows he doesn't have much more time on the Court, and is saying the last rites for the Warren consensus which was dedicated to securing racial justice in America. Thanks to Justice Kennedy, that pact still lives. But it is on life support, and Stevens was right to craft his eulogy.