The court’s last cases are being handed down as I type this. The conservative block of the court wins the Leegin, a case revolving around vertical integration and pricing laws. The court’s liberal block won a death penalty case that now upholds laws that restrict the use of the death penalty on people who have severe mental illness. This is an important win for the liberal block and their first since April 25 , 2007 in other death penalty cases.

In the important school-board cases, the conservative block one 5-4 with Kennedy concurring in judgement but not joining the majority opinion. His vote with the liberals in Panetti and this separate decision will show the conservative block that they still have to fight for Justice Kennedy’s vote, despite what seems to be his general inclination to their ‘side’.

Thomas has written a concurring opinion. The opinions haven’t been posted online yet, but I’m interested to see what he will say especially in light of the recent hailstorm of controversy that has arisen out of his anti-affirmative action views.

Added [9:40]: The opinions have gone online. SCOTUSblog lists them all here. The opinion in Parents Involved in Community Schools v. Seattle School Dist. is particularly interesting.

The plurality opinion in this case was written by the Chief Justice and signed by Justices Scalia, Thomas, and Alito. They suggest that the plan employed by the Seattle School district wasn’t ‘narrowly tailored’ to achieve the result desired by the Seattle School board. This analysis is not unique to his case and had been used to argue against affirmative action policies across the country since the widespread adoption of affirmative action. Justice Kennedy agrees that the suits are not narrowly tailored, but he will not go as far as the court goes in suggesting that race-based policies are always unnecessary. This excerpt from the summary explains:

JUSTICE KENNEDY agreed that the Court has jurisdiction to decide these cases and that respondentsí student assignment plans are not narrowly tailored to achieve the compelling goal of diversity properly defined, but concluded that some parts of the plurality opinion imply an unyielding insistence that race cannot be a factor in instances when it may be taken into account.

Added [9:55]:Later, Justice Kennedy clarifies:

The plurality opinion is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race. In administering public schools, it is permissible to consider the schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.

This is good news for those of you who are big affirmative action fans. I’m not particularly fond of race-based affirmative action. Justice Kennedy may simply be trying to play a role as ‘the centrist’ but its hard to read the purpose of this dissent as part of a broader conspiracy. Justice Kennedy seems to be in favor of broad action from the court but I find it odd that he suddenly refuses to sign to a petition or rhetorical purposes (he wrote the now infamous Carhart majority decision.)

Justice Thomas writes his dissent in order to refute some of the claims in Justice Breyer’s dissent. Thomas argues that “Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.”

Added [10:07]: Justice Thomas pens an interesting footnote. Footnote 3 highlights Thomas’ beliefs with candor that we usually do not see from the most secluded Justice on the court. He makes clear his beliefs that the school district’s hard-won gains come in “the elimination of the vestiges of the system of state-enforced racial separation that once existed in Louisville,” not in racial balance. I’m going to try not to quote too much, but here is the glory of Justice Thomas’ Footnote 30:

JUSTICE BREYER’s good intentions, which I do not doubt, have the
shelf life of JUSTICE BREYERís tenure. Unlike the dissenters, I am
unwilling to delegate my constitutional responsibilities to local school
boards and allow them to experiment with race-based decisionmaking
on the assumption that their intentions will forever remain as good as
JUSTICE BREYER’s. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961)
(‘If men were angels, no government would be necessary’). … The Seattle
school district’s Website formerly contained the following definition of
‘cultural racism’: ‘Those aspects of society that overtly and covertly
attribute value and normality to white people and whiteness, and
devalue, stereotype, and label people of color as other, different, less
than, or render them invisible. Examples of these norms include
defining white skin tones as nude or flesh colored, having a future time
orientation, emphasizing individualism as opposed to a more collective
ideology, defining one form of English as standard . . . .

Dear god.

Added [10:20]: Justice Stevens, in a short dissent, argues that the court is not appropriately adhering to precedent. He concludes with some pretty awesome rhetoric:

It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.

I’m going to miss Justice Stevens. I guess its a good thing that he’s not going way for a while.


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