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School Case Blogging:
There's lots of excellent blogging out there today on the Supreme Court's decisions on the use of race in public schools. I was particularly interested in posts by Eric Muller, Paul Horwitz, and Jack Balkin. Are there other posts you think are particularly good? Be sure to link to them in the comment thread.
Hemaworstje (mail) (www):
burrp , sure a hell a of of retro jiddish names but aah what the heck are y the geezers from drilling the cores?
if so well good luck in finding a nemoïstic clue in our humanity.

Teh farmers shall prevail. like ockroaches.
6.28.2007 8:42pm
David Schraub (mail) (www):
I put together a big roundup of blog reactions. It's part of a series of posts I wrote on the decision, one for each opinion (links collected at the top of the post).
6.28.2007 8:48pm
BobVDV (mail):
The Chief Justice's opinion (aka the plurality) repeatedly refers to the dissent as "Justice Breyer's dissent", while the concurring opinions by Justice Thomas and Justice Kennedy refer to the dissent as "JUSTICE BREYER's dissenting
opinion (hereinafter dissent)".

Is the Chief unduly personalizing the dissenting opinion by consistently referring to it as "Justice Breyer's dissent", or is this the norm for attributing dissents to the author rather than to the group of justices who sign onto it?
6.28.2007 9:50pm
MJG:
I wonder sometimes if things like that don't bespeak of some underlying movement among the Justices. Breyer's dissent, especially towards the end, talks about the implications of the "plurality opinion" in a way that I don't wonder if at one time it wasn't the "majority opinion" and that later Kennedy broke off, possibly after reading the dissent.
6.28.2007 10:22pm
OrinKerr:
MJG,

FWIW, I tend to think that's more or less right. (Not that Kennedy signed on and then broke off; rather that Breyer's opinion was drafted after Roberts' but before Kennedy's.)
6.28.2007 10:49pm
Andrew Hyman (mail) (www):
I must admit that the best blog commentary on this decision is here at confirmthem.
6.28.2007 11:26pm
Mary Dudziak (www):
A post on Roberts' misuse of Brown is on the Legal History Blog. More to come on the use of history in the case in the coming days.
6.29.2007 2:15am
bittern (mail):
Lior Strahilevitz trails Kennedy through the briars with some sympathy and some skepticism. If you prefer bile, Strahilevitz' take won't satisfy.
6.29.2007 11:21am
JosephSlater (mail):
Mary Dudziak: Nice post on the Legal History Blog. Thanks for the link.
6.29.2007 11:26am
Happyshooter:
Robert's comment beats any bloging hands down: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race
6.29.2007 2:20pm
Henri LeCompte (mail):
For those of you who follow such things, here is the reaction of the leading Democratic candidates for President:

http://apnews.myway.com/article/20070629/D8Q277NO1.html

Some choice highlights:
According to the journalist Nedra Pickler:

"They [the Democratic candidates] stood united against the Supreme Court and its historic ruling rolling back a half-century of school desegregation laws. Sen. Hillary Clinton, D-N.Y said the decision "turned the clock back" on history."


"Rolling back... of desegregation laws" is stated as an established fact!? Mind you, those are the words of a "journalist" in a straight news story.

Here is the complete and entire description of the recent Supreme Court ruling by the "straight-news" journalist, Ms. Pickler:

"The conservative majority cited the landmark Brown v. Board of Education case to bolster its precedent-shattering decision, an act termed a "cruel irony" by Justice John Paul Stevens in his dissent. The 1954 ruling led to the end of state-sponsored school segregation in the United States."


The coverage of the ruling is limited to coverage of the dissent! Beautiful. And yet, again and again, we have people on the Left scream about how there is no press bias, and how there needs to be a "fairness" doctrine. (A doctrine that would, of course, exclude articles like Ms. Pickler's, since they would be "news" stories, not "opinion" pieces.)

Cruel irony, indeed.
6.29.2007 4:48pm
MacGuffin:
6.29.2007 5:04pm
bittern (mail):
Henri, you're close to screaming already, yourself. If you listen more carefully, left-siders usually contend that there IS media bias, and that it's against their POV. One thing we could all agree on, perhaps, is that there is media bias against subtlety. The 4-1-4 characteristic of the schools decision (see MacGuffin's link) would be the case in point here. If the plurality opinion carried the day, the news story might have been close to its target. But it didn't.

You suggest Ms Pickler's reporting was lousy. As I recall, the Kossacks said similar things about her Iraq reporting . . . screamed about her Iraq reporting, I mean.

Disappointed in the Dems red-meat responses, at least as you've described them. But not surprised. It's crazy season again already.
6.29.2007 5:46pm
Henri Le Compte (mail):
bittern:
Thank you for your calm and thoughtful reply.

What bothers me much more than the press' slanted coverage of this story are the Democrat's slanted and misleading sound bites. I don't know about you, but I have found the Democratic Party to be amazingly irresponsible in its rhetoric during the Bush 2 years. Like in this case-- not only is all nuance and subtlety thrown out-- but even the vague outlines of the truth are sacrificed, in order to pander to a largely black audience.

Is it showing strong or principled leadership to tell an audience that the US Supreme Court is actively trying to bring back segregation?!? How come I am the only one who sees how pernicious that message is? It just rips at the soul of a society to have bona fide political leaders telling audiences that the highest court in the land is filled with closet racists. Don't you see that? It is fine to disagree with the Court, but don't insinuate that Justice Roberts is a racist! It is just a vicious lie. He's a decent and remarkable man with whom some Democrats have political disagreements. Why is it so hard to stay out of the mud and the ad hominem garbage?

A party that uses this garbage to obtain power is not a party that should be trusted with power.

Now, obviously, the Republicans are by no means perfect, but they do not routinely smear the fundamental institutions of our society in their pursuit of power. "Bhaa!!" I can see you scoff. Well, do me a favor. Watch the next Republican debate. I guarantee you won't see the largely white Republicans tell their largely white audience that the fundamental, and most esteemed institutions of our society, are out to screw them. The courts, the judges, the colleges, the powerful, the politicians, the captains of industry-- all prejudiced against them so that Blacks and Hispanics can get ahead. Everybody trying to keep you down, steal what is yours... unless you vote for us!! Can you imagine the shi*storm that would explode if the Republican candidates said something like that?

Well, the Democratic candidates make that exact pitch every day, and nobody says a word.
6.30.2007 1:41am
jimbino (mail):
Many commentators on this recent decision, and almost all the letters-to-the-editor contributors in today's NYT, are mistaken in their use of "integration" in referring to the order of the court in Brown v. Board of Education and in almost all the subsequent cases that addressed the problem.

What the courts did was to order "de-segregation" where de facto or de jure "segregation" on the basis of race had occurred, since they recognized that there is NO constitutional basis for mandating "integration" (or "diversity").
6.30.2007 4:06pm
dougjnn (mail):
Bittern, you’re not right that it was a 4-1-4 decision, it was but it is true that the concurrence of Kennedy is of crucial importance in understanding what the affirmative action or diversity standards will be moving forward, certainly for pre college public schools, but probably also much more widely than that.

However, Kennedy’s language in his Grutter dissent (the case which narrowly found the Univ. of Michigan’s affirmative action program permissible) is also of crucial importance. In fact under those facts Kennedy found that Michigan Law’s program weighted race too heavily and that it was in actual fact a rough quota system masking under different name and pretext.

He wrote in his Grutter dissent:
To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. ***

If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.


Following Grutter the conventional wisdom arose that as long as universities mouthed slogans such as “one factor among many” and perhaps had complex individual weighing admissions programs, then admissions goals for certain minorities could in fact work as rough minimum quotas. Such a approach is very unlikely to get Kennedy’s support in any future Supreme Court case considering permissible diversity programs including by universities.
6.30.2007 5:48pm