It’s like throwing dice and coming up all fives and fours these days whenever the court announces a decision. Hart has more here on the day the law died and I’m still scrolling through it (the race-based admissions for schools opinion is 185 pages long, the bastards). But here’s what we know on this final day of the ’06-’07 SCOTUS term:
In a 5-4 decision, the conservative “gang of five” struck down school district integration plans in Washington and Kentucky. Writing for the majority in Parents v. Seattle School District, et al (2007) CJ Roberts said “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The districts had “failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts.”
He read from the bench, as SCOTUSblog notes, reiterating that the spirit of Brown v. Board of Education (1954) is intact. Chimed in Thomas in his concurrence: “What was wrong in 1954 cannot be right today. Because our Constitution is colorblind, and neither knows nor tolerates classes among citizens, such race-based decisionmaking is unconstitutional.”
I wonder if Thomas is aware that our original “colorblind Constitution” counted dark people as 3/5 of human being?
This prompted Justice Stevens, to note the “cruel irony” of bringing up Brown to defend a decision which rewrites the history “of one of this Court’s most important decisions.” Stevens also noted that he joined the Court in 1975, and asserted that “no member of the Court” at that time “would have agreed with today’s decision.”
Interestingly, while Kennedy joined the five in tossing these district’s plans, he wrote in a separate concurrence that he was not willing to go as far as the other four conservatives and completely toss out the use of race in attempting to ensure a “diverse” school system.
So much for the “Roberts Court”. It really is the “Kennedy Court” at the moment. Of the 24 5-4 decisions announced this term (which SCOTUSblog also notes is a new record), Kennedy was in the majority every single time. Unbelievable.
Two other 5-4 decisions today (one being a bit of sanity, one not). The latter, another anti-trust victory for big business Leegin Creative Leather v. PSKS, Inc. (2007). Says the Times: “The Supreme Court on Thursday abandoned a 96-year-old ban on manufacturers and retailers setting price floors for products…It is the fourth antitrust ruling by the court in the last four months. In each instance, the court sided with defendants that were sued for anticompetitive conduct, including Wall Street investment banks and an international forest products company.”
Awesome. A 96 year old rule? Pshaw! Out it goes!
And in a death penalty case Panetti v. Quarterman (2007), the court again split 5-4 (with Kennedy joining the liberals this time; insert conservative gnashing of teeth) to “block the execution of a Texas killer, saying lower courts should have considered psychiatric evidence about his mental illness.”
What’s scary about this decision is that it was this close. A mere five years ago the court ruled in Atkins v. Virginia (2002) that executing the mentally retarded was unconstitutional. The decision was 6-3 with Kennedy and O’Connor in the majority. What’s changed is Alito, siding with Roberts, Scalia and Thomas.
Wrote Thomas in dissent: “The court bends over backwards to allow Panetti to bring his current claim.”
LOL. This is, after all, the same Justice who once wrote in Herrera v. Collins (1993) that a “demonstration of actual innocence, in and of itself, after trial and conviction, is not reason enough to stay an execution.” I guess it’s “bending over backwards” to make sure we don’t go back to whacking the mentally retarded.
Frankly, I’m glad this session is over. Here’s hoping (and praying) we get one more solid term out of Justice Stevens.
Cross posted from AoF