The Roberts Court: The Struggle for the Constitution (16 page)

Ginsburg was not shy in her response, which she summarized for the dissenters from the bench after Kennedy announced the decision:

“The Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.’ Because of women’s fragile emotional state and because of
the ‘bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure . . . . This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.”

Reading a dissent from the bench is still rare and a sign of intense disagreement. More was to come. Four weeks later, Alito led the same majority in
Ledbetter v. Goodyear Tire & Rubber Co
. in holding that the nation’s job bias law required workers with pay discrimination claims to file their claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of receiving the first allegedly unlawful paycheck. Rejecting the EEOC’s long-standing policy, Alito said Lilly Ledbetter’s claim was untimely. Ginsburg, again reading from the bench, took the majority to task, this time for ignoring, she said, the reality of workplace practices. She called on Congress to respond, which it did with legislation President Barack Obama signed into law in 2009 shortly after becoming president.

In quick succession, six more decisions were announced in which the justices divided and debated whether older precedents had been overruled either outright or by stealth. The decisions crossed diverse areas of the law, including antitrust, campaign finance, juries and the death penalty, and standing to challenge government-supported, faith-based agencies.

Alito, too, was emerging as a strongly reliable conservative vote. By the term’s end, Alito and Roberts would have the highest rates of vote agreement. Roberts’s confidence in Alito was reflected in his assigning him the majority opinions in three major cases—remarkable for so new a justice, even a veteran judge like Alito—and notably better assignments overall than given in the term to his more veteran conservative colleagues, Scalia and Thomas.
¹

The tensions among the justices were almost palpable in their opinions. Roberts was being criticized across the bench. For example, Scalia, although he agreed with the outcome, charged that the decision in
Hein v. Freedom From Religion Foundation
, written by Alito, “beat to a pulp” a 1968 precedent that, he believed, should have been abandoned. “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future,” he wrote. And Scalia, again agreeing only with the result, accused Roberts of “faux judicial minimalism” and “judicial obfuscation” in
Federal Election Commission v. Wisconsin Right to Life
for failing to overrule outright the Court’s 2003 decision upholding the McCain-Feingold Bipartisan Campaign Reform Act of 2002. (Roberts and fellow conservatives would deal a near-lethal blow to that law in 2010 in
Citizens United v. FEC
.)

Roberts and Alito refused to follow Scalia and Thomas in three other cases in which those two justices wanted to push the law further to the right. One case involved a school district’s authority to prohibit and discipline a student for waving a sign with the message
BONG HITS FOR JESUS
outside the school during an Olympic torch relay in Alaska. Roberts wrote that the student’s First Amendment speech rights were not violated when the principal suspended him. But neither Roberts nor Alito adopted Thomas’s concurring argument that students had no First Amendment speech rights at all and the Court should overrule a 1969 decision recognizing such rights.
²

And Roberts and Alito did not sign on to a Scalia concurrence in which that justice argued that limiting a jury’s discretion to consider all mitigating evidence in a death penalty case does not violate the Eighth Amendment.
³

“There was frustration on each side,” recalled a former clerk. “I think everybody was sensible about it, but there was definitely some open, serious disagreement.”

For the four justices most often in dissent—Stevens, Souter, Ginsburg, Breyer—the dominant feeling was “depression,” added another clerk. “That wing of the Court would lose over and over again.”

The “crowning moment of disappointment” for that wing came on
June 28, the term’s final day. The school cases remained, and two others: an antitrust case in which the Court’s conservatives, ruling 5–4, overturned a precedent dating back almost a century; and the death case involving a mentally ill prisoner in which the Court’s liberal wing actually prevailed.

The school cases were the last to be announced, and although the outcome was expected given the tenor of the December arguments, the courtroom atmosphere was tense. The next roughly thirty minutes offered those gathered before the bench a rare glimpse of high drama in the Supreme Court.

Two successors to Thurgood Marshall’s leadership of the NAACP Legal Defense Fund—one current and one future—sat together with one of the nation’s most recognized scholars on
Brown v. Board of Education
. They watched intently as Roberts began his summary of the Court’s decision by reciting the facts in both cases. But as he moved through the decision, his delivery was flat, not his usual forceful reading.

When the government uses racial classifications, he said, its actions are reviewed under strict scrutiny (the Constitution’s most exacting review). To satisfy strict scrutiny, the districts must show the classifications are narrowly tailored to achieve a compelling interest.

The Court, he explained, has recognized two compelling interests in the school context: remedying the effects of past intentional discrimination (which neither Seattle nor Louisville were doing with their plans), and diversity in higher education, not focused on race alone but on all factors that might contribute to student body diversity.

The Seattle and Louisville plans, he said, use a limited notion of diversity, viewing race exclusively in white/non-white terms in Seattle and black/other terms in Louisville.

“In design and operation, the plans are directed only to racial balance, pure and simple, an objective the Court has repeatedly condemned as illegitimate,” wrote Roberts. The minimal impact of the school plans on enrollment, he added, cast doubt on the need to use racial classifications. And the districts failed to show they considered methods other
than racial classifications. “Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives.”

As he did in his opinion in the Texas redistricting cases with his clever and memorable comment, “It’s a sordid business, this divvying us up by race,” Roberts ended his opinion with another statement certain to capture public and media attention: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (It was actually a paraphrase of a comment by Judge Carlos Bea, who dissented in the lower court decision upholding the Seattle school plan.)

When Roberts finished, Kennedy briefly summarized his concurring opinion. He agreed the school plans were unconstitutional, but he said he could not fully join Roberts’s opinion because it implied “an unyielding insistence” that race can never be a factor because the Constitution is “color-blind.” Diversity, said Kennedy, is a compelling educational goal that a school district may pursue.

Because Kennedy would not join parts of Roberts’s opinion endorsing the color-blind principle, Roberts’s opinion only had four votes—a plurality, not a majority of the Court. In that situation, the narrower opinion—here Kennedy’s—became the controlling opinion.

“To the extent the plurality opinion suggests the Constitution mandates that state and local authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken,” Justice Kennedy said. The “color-blind Constitution” that those justices relied on, he wrote, is an aspiration.

In pursuing diversity or avoiding racial isolation in schools, he said, race may be a factor—not alone but along with demographic factors, plus special talents and needs. Kennedy suggested the use of alternative, race-neutral methods, such as strategic site selection, recruiting students and faculty in a targeted fashion, allocating resources for special programs, and strategic drawing of attendance zones.

However, he also accused the dissenting justices of misinterpreting the Court’s precedents and warned that accepting their reasoning would result in government racial classifications beyond education.

After Kennedy spoke, Stephen Breyer, in a remarkable counterpoint to Roberts’s dispassionate delivery, announced a passionate dissent. His summary lasted twenty-two minutes and he told the courtroom that his written dissent—77 pages—was twice as long as any dissent he had ever written. But the length was necessary, he explained, because it was important to tell the history of the Court’s desegregation jurisprudence, to show how the Court now was departing from it wrongly, and to recount the voluntary efforts of the two locally elected school boards to prevent resegregation of their schools.

Breyer, who often strives to bridge gulfs, legal and otherwise, barely controlled his outrage as he bluntly announced to the courtroom: “The majority is wrong.” The school decision seemed to embody all of Breyer’s anguish over the direction taken by the Court’s conservative majority that term and what he believed was the wrongful overruling of precedents in eight other cases that same term.

In his written dissent in the school cases, Breyer said the Court’s precedents had recognized that the interests at stake in cases like the Louisville and Seattle school cases are compelling. “We have approved of ‘narrowly tailored’ plans that are no less race-conscious than the plans before us,” he wrote. “And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.” The words “compelling” interests and “narrowly tailored” are the language of the Court’s toughest test for determining the constitutionality of government actions. Known as “strict scrutiny,” the test asks whether there is a compelling governmental interest for the action and is that action narrowly tailored to achieve it.

Roberts’s opinion, he said, “distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines
Brown
’s promise of integrated primary and secondary education that
local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.”

He plaintively asked from the bench, “And what about stare decisis?” Breyer recited a long list of prior Supreme Court decisions that he said supported what the Seattle and Louisville school districts were attempting to achieve and which the Court’s majority was ignoring. The Court, he said, had long held that the Constitution gives school districts considerable leeway when it is using race in an inclusive manner.

As Roberts stared straight ahead with a visibly clenched jaw, Breyer concluded his oral summary with a comment found nowhere in his written dissent: “It is not often in the law that so few have so quickly changed so much.”

There were other opinions. Thomas, writing only for himself in an intensely personal way, as he often does in race-related cases, emphasized that the Constitution was color-blind and compared Breyer’s arguments to arguments made by segregationists who also had relied heavily on Court precedents—an especially stinging comparison for Breyer, who had so eloquently described the Court’s march against segregation.

“In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart,” Thomas wrote. “Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today’s faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to ‘solve the problems at hand,’ the Constitution enshrines principles independent of social theories.”

His view of the color-blind Constitution, he said, was the view of dissenting Justice John Marshall Harlan in
Plessy v. Ferguson
. “And my view was the rallying cry for the lawyers who litigated
Brown
,” he wrote.

Thurgood Marshall, who litigated
Brown v. Board of Education
and argued it in the Supreme Court, would not have agreed with Thomas’s characterization of the
Brown
lawyers, Marshall’s colleagues in
Brown
said later that day.

In 1978, when the Court considered its first affirmative action case in the education area—
Regents of the University of California v. Bakke
—the justices, in highly splintered opinions, decided that race classifications crafted to remedy discrimination should be judged by the same strict standard as those designed to harm minorities. Justice Marshall, in a bitter dissent, traced the history of race discrimination in America. He concluded: “It must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

Surprisingly, neither Thomas nor Scalia—the Court’s most committed proponents of interpreting the Constitution according to its original meaning—referred to the original meaning of the Fourteenth Amendment to support their view in the school cases. An amicus brief submitted by sixty scholars who had devoted their careers to the study of Reconstruction-era history, abolitionism, race relations, and civil rights, said the school assignment plans were “fully consistent with the original purpose of the Fourteenth Amendment. Indeed, the same Congress that passed the Fourteenth Amendment enacted a wide range of race-conscious programs and funded deliberate efforts to integrate schools.” The brief was filed on their behalf by one of the lawyers who helped to litigate
Brown
—Jack Greenberg of Columbia University Law School.