The recent school desegregation decisions handed down by the U.S. Supreme Court drive home three important lessons:
- There is nothing moderate about new Chief Justice John Roberts, regardless of his conciliatory tone at the confirmation hearings.
- To quote a recent presidential campaign, in national politics, “It’s the Supreme Court, stupid!”
- The swing justice remains the most important member of the Court.
In these recent decisions, the Supreme Court struck down school district affirmative action policies that the court acknowledged had a minimal effect on student assignments. In the case of Seattle, race served only as a tiebreaker in assignments to oversubscribed high schools; in Kentucky’s Jefferson County, it was used to make some elementary assignments and to rule on transfer requests.
Nevertheless, five justices concluded that these plans were unconstitutional under the Equal Protection Clause. Four of those justices essentially believe that classifying children on the basis of race violates the principle of a “color-blind constitution;” it would be hard for any affirmative action program to satisfy them.
The fifth – Justice Anthony Kennedy – is less willing to jettison the government’s interest in promoting diversity but was unhappy with the “imprecise” manner in which the districts made the student assignments.
As in most other 5-4 decisions this term (a high-water mark for such split decisions in recent decades), Roberts joined the most conservative members of the court rather than compromising with the liberals. That Roberts is a very conservative justice should come as no surprise. Bush nominated Roberts before his ratings tumbled to record lows and with the benefit of a Republican Senate.
The same can generally be said of the appointment of Samuel Alito. Liberals and moderates may be unhappy with these justices’ decisions, but they confirm that one of the president’s most important powers is the judicial appointment. To the victor go the (judicial) spoils. Nor is this conservative block likely to break up any time soon; the eldest justices are liberals. So yes, it’s the Supreme Court, stupid.
Which brings us to the most important justice on the court. While the chief has been described as “first among equals,” that moniker more aptly describes the swing justice, now Kennedy. In the school cases, Roberts wrote the opinion representing the view of the four most conservative justices, but Kennedy did not join that opinion on some of its most essential parts – instead presenting his own views in a separate opinion.
As in previous affirmative action decisions in education and voting rights, it is this separate opinion by the single swing justice that will govern whether affirmative action policies stand or fall. Kennedy supports local policies “designed to encourage a diverse student body, one aspect of which is its racial composition.”
But simply classifying each student by race, without consideration of other factors, is, for Kennedy, too crude to withstand constitutional scrutiny. Kennedy wants affirmative action policies that are carefully tailored to promote diversity without relying solely on race.
And because he represents the center on the court – and thus the critical vote in all future cases – Justice Kennedy will get what Justice Kennedy wants. Ain’t it wonderful to be the swing justice?
Stefanie A. Lindquist is an associate professor of political science and law for Vanderbilt University who specializes in judicial politics and public law. She received her law degree from Temple University. This editorial was originally published in The Tennessean, July 1, 2007.