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Shifting The Groundwork At SCOTUS

supremeshift.jpgIn yet another activist court decision, the US Supreme Court conservative “Gang of Five” have issued a number of opinions this week, all of which come under the rubric of thumbing their collective noses at stare decisis. 

The phrase “I told you so” leaps to mind here, but that doesn’t do us any good now.  See what the moronic vote stylings of Joe Lieberman and other keepers of the fence-sitting flame have wrought.  (I’m looking at you and your pile of unused donation cash, Nancy Keenan.  By the way, in case you haven’t noticed, Sen. Whitehouse is doing a fine job – no thanks to you.)

Today, for example, the Court issued yet another 5-4 opinion (although, to be fair, it was 5-4 by virtue of a wishy-washy Kennedy concurrence that attempts a non-Solomonic splitting of hairs) in cases dealing with desegregation efforts and school systems that have been the standard since Brown v. Board of Education

Dakine01 found a great local newspaper article discussing the Kentucky case, which included the following:

Justices could uphold or strike down the use of race entirely, which could carry implications beyond schools and possibly into affirmative action programs. But some predict a narrower, split ruling that approves integration’s goal but rejects certain methods.The decisions “have to be carefully studied, parsed and reviewed to determine what they really mean. It’s not always immediately clear,” said Ted Shaw, president of the NAACP Legal Defense Fund.

Louisville was under a court order to integrate until 2000, when a judge ruled that had been achieved. But with schools resegregating nationally, the district opted to continue under a plan upheld by lower courts.

John Powell, director of the Kirwan Institute for the Study of Race and Ethnicity at Ohio State University and Gary Orfield, co-director of the Civil Rights Project at UCLA, recently wrote that a ruling against the district would be a major setback to racial equality.

“Without these plans, it is very likely that public schools could again become resegregated in Louisville and Seattle over time,” they wrote.

SCOTUSBlog is following this closely, and has links up to the decisions (which are a whopping 185 pages long). 

Jack Balkin has had a great running commentary going on all the cases this term, and his summary the other day on the varying degrees of obstinancy among the various conservative factions was extremely interesting.

There are two ironies worth noting. The first is that George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases. That may be because they are new on the Court and not yet ready to overrule cases left and right (mostly to the right). Or it may be because they are genuinely “conservative” in the sense of preferring slow and steady incrementalism to the large changes in doctrine that Scalia and Thomas prefer. In any case, Roberts and Alito do not seem to be “in the mold” of Scalia and Thomas, although, to be sure, they seem to be just as conservative, and perhaps that is what Bush really meant.

The second irony is that Chief Justice Roberts had hoped to produce more consensus and fewer plurality opinions during his time as Chief Justice. Yet, even in cases in which he and Alito agree with Scalia and Thomas on the result, he couldn’t manage to get a majority opinion in Hein and Wisconsin Right to Life.

Today’s opinion was another plurality — but I’m going to have to find some time to read through everything to get a feel for where this one will fall.  Linda Greenhouse had a similar assessment in the NYTimes today, written prior to the desegregation decisions, and it is worth a read as well.

That even conservative columnist James Kilpatrick bashes the Roberts’ court for factual irregularities, internal inconsistencies in reasoning and a general activist bent and disdain toward stare decisis is telling.   (H/T to reader WB for the link.)


I cannot help but think about former Justice Thurgood Marshall, and his NAACP legal compatriots, and their joy on the steps of the US Supreme Court following reading of the opinion in Brown v. Board of Education, and what that decision meant for so many Americans who were, in that moment, lifted up.  The joy on their faces, and the hope.

Today, all I am feeling is hollow — that this Supreme Court lifts up no one but those who think as they do, and that the rest of the nation, especially those who most need a hand up from the shadows of poverty and despair, are left on the sidelines whether or not they have been wronged.

(Photo at the top via His Noodly Appendage.  Photo of George E.C. Hayes, Thurgood Marshall, and James Nabrit via Wiki.)

UPDATE:  Here’s a bit of good news.  Howie says that the netroots beat Lieberman’s Collins fundraiser efforts — by a lot, as in somewhere between $100,000 and $120,000 at the current count.  Toxic Joe, keeps on keeping on…

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com