When I said earlier that the “big news so far” for today was the rejection of the Senate’s immigration bill,” I hadn’t begun to digest the Supreme Court decision (Parents Involved in Community Schools v. Seattle School District #1) that overturned racially-conscious school assignment systems in Seattle and Louisville.
Four Justices (Roberts, who wrote the official Court decision, supported by Alito, Scalia and Roberts) leaped squarely to the radical position, long urged by conservative legal activists, that race-conscious state action in education is unconstitutional absent a direct relationship to efforts to dismantle state-sanctioned (i.e., de jure) school segregation. Four Justices (Breyer, Stevens, Ginsberg and Souter, with the first two writing dissents expressing not only disagreement but alarm) dissented. And the Court’s current arbiter, Justice Kennedy, agreed with the decision on factual grounds, while disagreeing explicitly with the Roberts position prohibiting race-conscious remedies.
Many millions of words are probably going to be written about this decision in months to come, so I won’t use that many. The Roberts position would essentially bring to a close the Brown v. Board of Education era of official efforts to promote racial integration in schools, except in those very limited cases where current racial school attendence patterns can be traced directly back to Jim Crow. Integration itself would have no favored status, and indeed, measures to achieve it would be deemed in violation of the Equal Protection Clause if race-conscious remedies were employed.
As in the big abortion decision in April (Carhart v. Gonzales), it’s clear that Justice Kennedy is the only obstacle–and a limited, perhaps even ineffective obstacle at that–to a conservative activist majority on the Court with potentially revolutionary goals. Justice John Paul Stevens, in his poignant dissent today, suggested that not a single member of the Court he joined in 1975 would have likely agreed with Roberts’ position, or even with the decision Kennedy enabled. And that Court, mind you, included William Renquist.
Why is this an issue of concern at The Democratic Strategist? It’s simple: the composition of the U.S. Supreme Court is going to be and ought to be a major issue in the 2008 presidential campaign, and perhaps well beyond it. It’s already an overriding issue on the Right. But while Republican politicians have long mastered a dog-whistle rhetoric designed to promise the social engineers of the Right the kind of Supreme Court they want without unduly worrying others–even Rudy Giuliani has learned to talk about “strict constructionist” judges–Democrats have only begun the task of dramatizing judicial and constitutional issues, other than in sidebar discussions with the pro-choice or civil rights activists who are already focused on them.
The Supreme Court is on the brink, and progressives need to push back on a broad front that mobilizes people far beyond the activist ranks.