More Than You Can Handle: An Ode To Murkowski (and Others)

Observers are rightfully hammering Alaska Senator Lisa Murkowski for admitting she didn't like Trump's catastrophic budget bill right after her decisive vote in favor of passing it.

Murkowski's actions, as has been noted by others, symbolize all that's wrong in American politics. But it did inspire me to write a little missive about people like her, in situations like this.

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They say "God doesn't give you more than you can handle."

But we know that's not true.

Sometimes, the weave of fate thrusts people into situations where to do the right, necessary, and crucial thing demands great moral courage, or great physical courage -- a fortitude that some people simply do not have.

They're tragic figures, in a sense (not quite as tragic as the millions of lives they destroy, of course). For they might be perfectly adept in other domains: kind parents, skillful administrators, prudent negotiators, incisive analysts. And these are virtues too! Nobody is great at everything, and most of us should be so lucky to not have to demonstrate great moral or physical courage in order to fulfill our most basic civic duties.

Unfortunately, for some, fate demands of them this specific virtue, and they do not have it.

But the tragedy, to be clear, is not an apologia. To the contrary, the tragedy is that this will be their sole legacy, and rightly so. The same person who, in a different role or in a different time, might be memorialized as a kind parent, skillful administrator, prudent negotiator, or incisive analyst, will instead be remembered for their terrible failure to rise to the moment. They may deserve pity, but they don't deserve forgiveness; understanding, but not salvation.

(Feel free to apply this John Roberts as well).

Roberts to Trump: The Bottle is in the Warmer

It's taken less than two months for Donald Trump to start demanding impeachments of judges who issue rulings he doesn't like. This remarkably fast turnaround prompted Chief Justice Roberts to rebuke the president, stating that the proper mechanism for expressing disagreement with a lower court decision is an appeal, not an impeachment threat.

People are reading Roberts' statement as him recognizing Trump's increasingly lawless posturing and pushing back (albeit in a sort of "Dr. Frankenstein realizes his monster is a problem" sort of way). I must confess, I read it more like me trying to calm my screaming baby while his bottle is in the warmer: "If you could just wait five minutes I promise I'll give you what you want."

I guess we'll see who's right.

The Man Who Presided over the Fall of the Supreme Court

When John Roberts was first starting as Chief Justice, I remember a lot of commentators describing him as an "institutionalist", someone who was deeply committed to preserving the Supreme Court as a respected, non-partisan fixture in American life.

So I wonder what he's thinking now.  John Roberts is on the cusp of being the man who presides over a Supreme Court whose basic public legitimacy has become so compromised that court packing -- long an obvious non-starter in American politics -- now feels close to inevitable upon a Democratic victory (indeed, in a different sense, has already begun under a Republican presidency).

It's not entirely the Chief's fault. But it's certainly more than one-ninth his fault. Under his stewardship, the conservative faction of the Supreme Court has grown increasingly emboldened in acting as essentially an arm of the political right, with a particular eye towards undermining voting rights in a nation where the GOP has lost the popular vote in seven of the last eight presidential elections. Shelby County is the most egregious example, but the Court has hardly covered itself in glory in adjudicating elections controversies during this administration. At this stage in the game, Democrats are well-justified in worrying that the Supreme Court as its currently constituted (particularly with the soon-to-be rubber-stamped confirmation of Amy Coney Barrett) will not allow small-d or large-D democratic governance -- not because of anything in the Constitution, but because they've committed themselves to protecting perpetual minority rule.

The thing is, I do believe that -- in some non-trivial sense -- Chief Justice Roberts is an "institutionalist" in the way these commentators described, and that the loss of the Court's legitimacy is something he feels as a loss. It's not an act. But all that means is that he is a man who could not rise to the moment history placed him in.

How Roe Might Die In Life

Sen. Susan Collins (R-ME) has said that Judge Kavanaugh told her he agrees with John Roberts on Roe v. Wade: It's "settled law".

Is this another episode of "how gullible is Susan Collins"? Almost certainly yes. But it also offers an opportunity to at least a plausible avenue whereby Roe could not formally be overturned but could functionally be killed off.

Justice Kennedy provides a model. He was part of the trio of Republican-appointed justices who "saved" Roe v. Wade in Planned Parenthood v. Casey. Also in that case, he and a court majority upheld virtually all of Pennsylvania's substantive restrictions on abortion rights (striking down only the spousal notification requirement). And after Casey, Justice Kennedy continued to vote to permit pretty much any abortion restriction that presented itself to the Supreme Court even as he never came out and said "Roe v. Wade is overturned."

It's easy to imagine a similar trend basically eroding Roe into dust. Casey and Roe each offer rhetoric for the Court to latch onto. Roe explicitly acknowledged that the value of protecting fetal life was an important governmental interest. Casey, for its part, allows abortion to be banned at any point prior to "viability", and advances in medical technology have steadily pushed that date back. Just as Casey announced a new gloss on Roe while still reaffirming its "core holding", it's not hard to imagine a Kavanaugh-centered court suggesting that Roe is intact so long as some women in some states (generally, liberal states where abortion rights are democratically-entrenched) can access it, and that there is no conflict with Roe or Casey's "core holdings" when women can still access the morning-after-pill.

Basically, what'd we'd get in this world is a studied avoidance of actually overturning Roe while still permitting various state-level restrictions which make abortion functionally impossible to obtain. The net result is a world that's observationally equivalent to Roe being overturned, but Roberts and Kavanaugh get to pat themselves on the back as respectful of precedent.

And the thing is -- this sort of move is a John Roberts special. Yes, the Roberts court isn't afraid to explicitly overturn precedents when it has to (e.g., Janus or Citizens United). But what it really loves to do is "distinguish" precedents it dislikes in ways that virtually obliterate the old holding. Gonzalez v. Carhart, upholding a federal "partial-birth abortion" ban while somehow not overturning Stenberg v. Carhart (which struck down a virtually identical state ban), is maybe the keynote example of this move.

I still think the most likely result of a Kavanaugh confirmation is Roe gets (formally) overturned. But the Roberts Court has ample tools at its disposal if it wants to bury Roe without actually killing it. The idea that conservative jurists actually need to utter the words "Roe v. Wade overruled" to effectuate their abortion agenda is almost certainly a myth.

UPDATE: Okay, so it turns out Leah Litman did this, but better.

The Roberts Court Votes on Brown

Norm Ornstein, writing in The Atlantic, argues that had it been the Roberts Court sitting in 1954

[t]he decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—leaving separate but equal as the standard.

Ilys Somin cries foul. And I think Somin has the better of the argument, but it's a more interesting question than he lets on.

Somin observes, quite correctly, that the "colorblind constitution" advocated by Chief Justice Roberts and others makes easy work of the de jure racial classification at issue in Brown. But I don't think the point of the hypothetical is to transport the doctrines and particular legal and policy beliefs of the Roberts Court back to 1954. After all, these doctrines and policies derive from particular historical roots, of which Brown of course looms large. But in 1954, the "colorblind constitution" was hardly so entrenched -- its jurisprudential provenance was a solo dissent in an 1896 decision that the Court had, to that point, been extremely careful not to disturb. And the "separate but equal" doctrine that prevailed instead was, on face, perfectly egalitarian. It has "equal" right in the name!

Somin contends, though, that irrespective of this superficial equality "a Supreme Court justice who believes that the government should “stop discriminating on the basis of race” would have no trouble striking down school segregation laws, regardless of whether the separate schools were 'equal' or not. Jim Crow segregation laws were nothing if not blatantly obvious examples of discrimination on the basis of race."

But was it so "blatantly obvious" back then? Of course, in many cases there were material differences between the separate accommodations, and that is indeed an easy case. The Court had begun tackling these facial violations of "separate but equal" in cases like Sweatt v. Painter and McLaurin v. Oklahoma Board of Regents, and I have no doubt that Roberts and company would have followed those precedents. But making the jump to the colorblind constitution requires more -- it requires a theory for why formal equality isn't enough. It is notable that this debate played on Plessy, and the terms of the debate were the social meaning of racial separation. The majority adamantly ignored these social conventions:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

But does anyone seriously have confidence in the Roberts Court to develop a new rule on race based on the social effects of a formally equal legal rule? This, to put it mildly, is not their standard operating procedure.

Nonetheless. maybe these cultural conventions really were so "blatantly obvious" that the Roberts Court would craft a brightline rule addressing them. This is buttressed, ironically, by the fact that in my estimation the Roberts Court's identification with a "colorblind constitution" doesn't derive from any cognizable legal foundation (originalism, textualism, etc.), but really represents a deeply-felt policy preference. And while that normally is not praiseworthy, it does mean that the conservative Justices would be more inclined to craft this rule even where it did not have a clear link to prior precedent or a prevailing legal theory.

The really interesting question, though, is how the Roberts Court would have decided Brown II (and the subsequent "remedial" jurisprudence line). Ornstein did not raise this issue, so I don't fault Somin for not responding to it. But recall the context: after Brown the District of South Carolina on remand took away from the cases the following principle:

The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation.

To the extent Brown II allowed or even required the use of affirmative race-conscious steps to integrate schools, would the Roberts Court have followed along? Or would it have endorsed the position of the District of South Carolina that the start and end of "desegregation" was erasing government statutes mandating racial separation?

To be sure, the Roberts Court today recognizes (barely) that the use of race to remedy de jure racial discrimination is constitutional. But their acceptance of this principle is much more tenuous than that of the colorblind constitution, and derives almost entirely for the legal and emotional precedential force of the Court's civil rights era desegregation jurisprudence. Starting from scratch, would they have announced a similar rule? I think not.

In short, I think Chief Justice Roberts would have signed onto Brown. But I think that's as far as he would have gone. When it comes to remedies, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The judgment of the District of South Carolina on remand would be affirmed.

Immodest Robes

TPM tries to read the tea leaves on the Supreme Court's upcoming affirmative action decision, but I was more struck by this throwaway line:

Numerous legal scholars thought the five conservative justices on the Roberts Court — not best known for judicial modesty — would end Grutter now.

I don't disagree that the Roberts Court is not exactly a beacon of "judicial modesty." But remember when it was? Or more accurately, remember when it was thought that it would be? A lot of folks thought that would be a defining feature of the Roberts Court. Maybe that was always an unreasonable belief; maybe the whole idea of "judicial modesty" is conceptually incoherent. I do find it interesting, though, that the conventional wisdom regarding the Chief Justice and his cohorts has done a complete 180, such that now folks can just casually presume agreement with the statement that they're the furthest thing from "modest."

The Answer is Enforced Silence, Not More Speech

We've been seeing a trend in recent years where the greatest threat to free inquiry, for conservatives, is other people speaking. Consider the fall out from Chief Justice Roberts' ACA opinion. Conservatives are convinced that Roberts changed his vote due to "left-wing media pressure". Here's Avik Roy at the National Review:

Perhaps, the next time a Republican president nominates a Supreme Court justice, he should make the candidate swear to never pick up a newspaper.

The bottom line, if Jan Crawford is right, is that conservative justices can be blackmailed by left-wing editorialists. It’s not a pretty picture.

As Roy Edroso points out, this might be the first time that "mere viewing of contrary opinions" has been characterized as "blackmail". Obviously liberals thought that a decision striking down the ACA would be terrible as a matter of law. The position of liberals had consistently (since well before the debate over the ACA specifically began) been that this law was obviously constitutional and could only be struck down if judges let their ideological preferences overcome any semblance of respect for law or precedent (they were buttressed in their belief due to the fact that this was the consensus conservative position too right up until it became associated with the Obama presidency). It's hardly surprising that, upon watching the well-understood contours of the Commerce Clause appear on the verge of shifting due to what was essentially a political temper tantrum, they'd speak up about it. Exactly how is airing this viewpoint "blackmail"?

(Im)Proper Constitutionalism: Roberts' Revenge?

Now that the original frenzy over the ACA ruling has died done (a little), folks are starting to dig a little deeper into the opinions (particularly Roberts') to figure out what it means for the next case (incidentally, you can read the opinions here). Chief Justice Roberts' formulation is that the individual mandate does not lie within Congress' commerce clause power (nor the necessary and proper clause), but functions effectively as a tax and thus is part of Congress' taxing power. Now that I've quickly read over the commerce/N&P parts of the opinions (well, Roberts, Ginsburg, and the joint dissent), I have a few thoughts on them as well.

First thing is first -- I'm not sure I've ever seen as vicious a spanking as Justice Ginsburg delivers to Chief Justice Roberts on the commerce clause question. It is an utter smackdown of epic proportions. She clearly demonstrates that, under existing precedent, the ACA should have been by all rights a slam dunk, and that the parade of horribles Roberts and others have trotted out are more or less fanciful. So you go Justice Ginsburg. Keep on keepin' on.

Some folks are speculating that Chief Justice Roberts is pulling a Marbury -- issuing an opinion that on face is a victory for the President while actually sharply moving doctrine in a new direction undesired by the Chief Justice's political opponents (in Marbury, establishing judicial review, here, sharply circumscribing the Commerce Clause).

Chief Justice Roberts' attempt to atomize the discussion (is this individual person "in the health insurance market"?) is reminiscent of the style of commerce clause analysis the Court rejected in Jones & Laughlin. There, the Court rejected older decisions which looked individually at particular segments of the steel production process and asked if, individually, they were exhibiting a substantial effect on interstate commerce. The Court instead said we should look at the "steel industry" as a whole (which clearly does significantly impact ISC), and then Congress can issue regulations of the steel industry as part of regulating ISC. Similarly, the "health insurance market" is clearly a huge part of interstate commerce, so the question is whether regulating persons who do not possess health insurance substantially effects that market -- which of course it does (Justice Ginsburg's arguments about these persons "proximity" to the market were particularly on target).

But the part of the opinion that is more eyebrow raising to me is not the Commerce Clause analysis, but rather the decision to give the "proper" in "necessary and proper" independent weight. Given McCulloch (and Raich), that the individual mandate satisfies the necessary and proper clause would seem to be obvious -- it is an essential part of Congress' attempts to regulate the health insurance market as a whole. The rhetoric in McCulloch focused particularly on the word "necessary" -- to wit, does it mean "absolutely indispensable", or just convenient or useful? The Court found it meant the latter, reasoning that an alternate interpretation would render the Courts an effective super-legislature judging for themselves what was the single best way of regulating health care policy (this did not stop the joint dissent from explicitly doing just that, saying that the individual mandate was not necessary because the dissent could conceive of alternative health care regulations). This means, as Chief Justice Roberts acknowledges, that courts are very deferential about what legislative policies are "necessary".

Still, with "necessary" seemingly a bust, what about "proper"? It was the claim that the individual mandate was not a "proper" way of exercising the commerce clause authority that was Chief Justice Roberts' ultimate hinge. Here, Chief Justice Roberts accords no such deference, and that's especially worrisome given that the only constraining text he's using is the word "proper". As much as we might worry about courts imposing their own policy preferences when they utilize relatively open-ended language like "due process of law" or "cruel and unusual punishment", that risk has to be tripled when the alleged constitutional infirmity is that the law isn't "proper". I don't even know what that could conceivably mean other than raw imposition of judicial preference.

And the Chief Justice's opinion hardly inspires confidence that "proper" will mean anything more than "personally distasteful". What makes a law not "proper"? All Chief Justice Roberts can give us is that the legislation isn't "proper" where it would "undermine the structure of government established by the Constitution" or is "not consist[ent] with the letter and spirit of the constitution." There is almost no constraining bite to that "doctrine" at all -- it is an open invitation to simply strike down whatever it is a given Justice finds distasteful. Which is more or less how it was used here: The individual mandate is not "proper" because ... mandates, ew, scary. There just isn't a workable argument in there -- particularly when, as Justice Ginsburg (again!) notes, it is far from clear that the mechanism of a penalty payable as a tax is more far-reaching than Chief Justice Roberts' own example of admittedly "proper" congressional exercises (such as, say, keeping someone in jail). Nor is it clear why, if the form of a mandate is so repugnant to the constitutional order, it becomes okay when it is viewed as a tax regulation rather than a commerce regulation. The answer is that programs like this aren't actually that scary, but using constitutional language as vague as "is it proper" is an invitation to disaster.

Now, on the "proper" end of things, it is possible that this is meant to be a ticket good for this ride only -- that the Court will not in fact start using questions of "is the law proper" to strike down legislation left and right (well, most likely left). But maybe not -- if it was meant to be just a tool for this case, Roberts would have joined his conservative colleagues and struck the thing down. If we do see a revitalization of Lochner-era due process jurisprudence under the new guise of "proper", that would be nothing short of a catastrophe.

Why Roberts Why?

That must be the question conservatives are asking themselves today. After all, the prevailing wisdom (one I signed onto) was that this was a 5-4 decision one way or the other, with Kennedy holding the swing vote. Now, I thought maybe if Justice Kennedy bit, Roberts might come along -- both to keep the decision from being yet another 5-4 ruling and to keep the opinion for himself. But Justice Kennedy voted to strike down the ACA -- indeed, by signing on to a far-right joint dissent for himself, Alito, Scalia, and Thomas, it indicates that it wasn't even a close call for the usually swingy justice. Which means that it was Chief Justice Roberts serving as the middle vote. So what prompted him to (switch his?) vote to uphold President Obama's signature law?

I have two potential explanations floating around right now. The first is legalistic. Chief Justice Roberts has always been a big government conservative. In fact, that's why he was appointed to the Court in the first place -- President Bush wanted someone he could count on to affirm his vast expansions of executive power in the War on Terror. One of the ways I teach my students that judges can exercise some independence from politics is that the political motivations which put them on the Court may not turn out to track the same sets of concerns as their careers progress. The classic example is Justice Frankfurter. Frankfurter was appointed to the Court as a fierce advocate of judicial restraint, which, with the Four Horsemen running roughshod over any and all state and federal economic regulation, was a defining progressive value at the time. And Frankfurter did turn out to be a reliable vote to uphold the New Deal. But as his career continued, the defining controversies for the Supreme Court started to become civil and criminal rights cases. And there, Frankfurter's deference to legislatures led to a far more conservative voting record. I'm not saying Chief Justice Roberts always is going to vote in favor of enhanced government power, only that the particular ideological profile he cuts -- the one that put him on the bench in the first place -- might have made him more sympathetic to the ACA than one might expect from a run-of-the-mill conservative judge.

Second, there are institutionalist concerns that may well have played a role. When he was first appointed Chief Justice, Roberts made clear that he wanted a more unified, less ideologically polarized Court. Whatever else one thinks of his tenure, it is clear that in that respect his has been a colossal failure. The Roberts Court has been bitterly fractured along partisan lines, and more and more (particularly with Citizens United) has been gaining a reputation as an ideologically conservative activist court. It's not that liberals are suddenly going to start singing the praises of the Roberts Court, but had the ACA been struck down, that train would have left the station for good. Basically, Chief Justice Roberts saw in this case that a vote to strike down the ACA was a vote to permanently remake his Court's image into one adjunct to the Republican Party. And he blinked.

Bar None Roundup

There's a feeling of freedom in the air, but it will dissipate as soon as I start working on my bar application in earnest.

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Israeli and Iranian relief workers join together in Japan. Unfortunately, as Harry's Place notes it is likely that one of the two countries will force out a denial that any cooperation occurred at all (remember this?).

I really like the cartoon at the bottom of this post.

Ahmadinejad predicts that the Arab revolutions will destroy Israel. Of course, he seems to say everything from the sun setting to the birds chirping will have that effect, so forgive my skepticism of his savvy geopolitical analysis.

Dahlia Lithwick describes Connick v. Thompson as "one of the meanest Supreme Court decisions ever."

More minimalism from the Roberts Court! (see my older post on the subject).

The Fruits of Their Labor

The Washington Post has an interesting profile of Louisville's continued efforts to keep their schools integrated after the Supreme Court's Parents Involved decision. The short story is that what was originally a rather popular and cost-effective plan is now more expensive, more convoluted, more difficult to administer, less effective and far less popular.

But hey -- at least Chief Justice Roberts got a pithy quote out of it.

A Very 'umble Court

The Uriah Heep John Roberts court looks poised to flash some of that vaunted judicial humility again, by striking down a critical portion of the Voting Rights Act:

The real question for the court today is whether there are indeed five votes for saying that for purposes of Section 5, America is so right that Congress must be wrong. It looks like there may be. And that's a long, long journey for the humble, minimalist Roberts Court.

This is a clause which passed 98-0 in the Senate and with only around 30 dissenting votes in the House. Fortunately, we have an activist principled Supreme Court unafraid to second-guess legislative fact finding on the scope and distribution of racial problems in voting.

The Desegregation Opinions: Chief Justice Roberts

[Other posts in the series:

Blog and 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)]

Roberts swung for the fences on this one. I cynically suggested in my first post that Roberts saw this case as a way to secure his legacy, and his opinion seems to bear that prediction out.

The first part of the opinion is reasonably narrow, articulating specific problems with the application of the Seattle and Louisville plans (this was the part of the opinion that Kennedy joined). In much of this, my reaction is similar to my reaction to the analogous portions of Kennedy's opinion. It's the latter half (Part IV and portions of Part III), where Kennedy's vote was absent, that Roberts really unleashes the artillery.

Much of my disagreement with the Chief Justice stems from a material disagreement as to whether segregation that is not directly traceable to de jure government action should be at all actionable, as well as whether the distinction between "racial integration", "diversity", and "balancing". Here's part of Roberts' discussion of this issue:

Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that "[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O'Connor, J., dissenting); internal quotation marks omitted). Allowing racial balancing as a compelling end in itself would "effectively assur[e] that race will always be relevant in American life, and that the 'ultimate goal' of 'eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race will never be achieved."
[...]
The Ninth Circuit below stated that it "share[d] in the hope" expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909-–910 (1996) ("[A]n effort to alleviate the effects of societal discrimination is not a compelling interest"); Croson, supra, at 498–-499; Wygant, 476 U. S., at 276
(plurality opinion) ("Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy"); id., at 288 (O'Connor, J., concurring in part and concurring in judgment) ("[A] governmental agency's interest in remedying 'societal' discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster").

The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from "patently unconstitutional" to a compelling state interest simply by relabeling it "racial diversity." While the school districts use various verbal formulations to describe the interest they seek to promote--racial diversity, avoidance of racial isolation, racial integration--they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05-–908, at 257a ("Q. What's your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that"); id., at 228a-229a ("I don't think we've ever sat down and said, 'Define racially concentrated school exactly on point in quantitative terms.' I don't think we've ever had that conversation"); Tr. in McFarland I, at 1–90 (Dec. 8, 2003) ("Q. How does the Jefferson County School Board define diversity . . . ?" "A. Well, we want to have the schools that make up the percentage of students of the population").

Jefferson County phrases its interest as "racial integration", but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 ("[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is . . . infirm as a matter of law" (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) ("The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole"), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.

The en banc Ninth Circuit declared that "when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution." Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled "racial diversity" or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. (22-25)

Roberts' cavalier dismissal of the entire concept of "diversity" is troubling, as is his (mis-)usage of Milliken and Swann--which held that mandatory desegregation plans cannot demand a particular racial balance--to argue that voluntary plans can't use those metrics. What the courts can order and what the legislature can pursue are not the same thing, and Roberts knows better than to conflate them.

I'd also note that Roberts simply asserts, without argument, that race-conscious integration plans are at "cross-purposes" with getting students to view their peers as individuals instead of members of a group. However intuitive that proposition may seem in the abstract, virtually all the empirical evidence points in the other direction. "Facts are stubborn things," as John Adams once said, and here they pose an insurmountable barrier to Roberts' substitution of rhetoric for reason.

Indeed, for all his complaints of how the dissent is engaging in hyperbole (he calls Breyer's rhetoric "cataclysmic"), there is a fair amount of hysteria in Chief Justice Roberts opinion. Twice, he refers to the plans forwarded by Seattle and Louisville as "extreme" (27, 38). But he gives very little in the way of analysis as to what makes them extreme--especially compared to the radical claim that race-based desegregation and race-based segregation are morally identical. Much of the arguments he does give are focused around the need of the constitution to protect individuals, not groups. But I am individually raced as White, and every Black student is individually raced as Black. The existence and perpetuation of race-based stereotyping and hierarchy effects all of us as individuals, and the Chief Justice shows little sensitivity or inclination towards dealing with this problem. Arguing that any use of race is an exercise in group-protection would force us to jettison not just "racial diversity" but "racial prejudice." Both would take an individualized characteristic and tag it to a group identity. Why should we look at prejudice on account of a group membership differently than prejudice on account of any other (more idiosyncratic) prejudice? Does even talking about racial discrimination "demean[] the dignity and worth of a person" (39, quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000))? Roberts opinion is not just irreconcilable with racial progressivism, it's irreconcilable with the idea of doing anything about anything race-related, including racism. If the thought, motives, and effects are all irrelevant (see 35), we are left with nothing more than legally-compelled amnesia. For my part, I think that we are mature and rational enough individuals that we can hear the word "race" without crawling under the bed in terror. As Ian F. Haney Lopez put it, "[t]o acknowledge race is to leave open the possibility--indeed the certainty--that this acknowledgment will at times be turned to racism's service." However, the fact that discussions of race can enable racism "cannot provide the reason for refusing to examine as honestly as possible the nature of race." [Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 19 (1994)]. Courage, not fear, is the order of the day.

Finally, as Justice Stevens indicated, the most offensive portion of Roberts' opinion comes at the end, where he tries to write his opinion as the successor to Brown.

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way "to achieve a system of determining admission to the public schools on a nonracial basis," Brown II, 349 U. S., at 300–-301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

The Chief Justice and I, respectively, have very different views about what Brown was about. No history class, no lecture, no textbook ever characterized the evil of segregation as being the usage of "Black" and "White" in the school statutes. The harm of segregation was that schools were segregated. Roberts last sentence is meant to echo William Van Alstyne's famous line, and he "wrote for the quote", so to speak. But with due respect, it is sick and twisted to refer to race-conscious integration as "discrimination." Before Brown, students were told that Black and White students ought not, could not, and would not go to school together. Over 60 years later, we our running a school system in which Black and White students still do not attend school side-by-side, and the opinion of Chief Justice Roberts says that schools ought not fix that. This is nothing more than a reversion to Plessy under new language (the Plessy Court, I'd note, strenuously denied that its policy of segregation was anything but neutral and fair to all parties). I would urge the Chief Justice to re-evaluate the content of Brown, and adopt a new slogan that is consonant with the way every school-child understands it: "The way to stop segregation on the basis of race is to stop segregating schools on the basis of race." So long as the schools remain segregated, the promise of Brown remains unfulfilled--and too many people have staked their lives on that promise to let it be corrupted by historical revisionism now.