The Nine [186]
In the next case, it was Kennedy again, this time siding with the four liberals. They struck down a death sentence for a Texas man who suffered from mental illness. This case reflected true judicial minimalism, because the Court set down no new rules and simply ordered the lower court to give the man a new hearing. Thomas, the Court’s most reliable supporter of executions, wrote a dissent for Roberts, Scalia, and Alito, but he declined to speak from the bench.
Then, finally, it came down to the last case of the year, the combined appeals on the Louisville and Seattle school desegregation cases, and Roberts announced he would deliver the opinion himself. Few justices in history have taken to opinion-writing as quickly as Roberts. The new chief is good-natured, to be sure, but he is also intensely competitive, and he writes his opinions as he did his briefs when he was a litigator—with crystalline logic, pungent rhetoric, and vivid examples. Once more the Court was limiting a precedent rather than overturning it outright—now it was O’Connor’s Grutter opinion—but the message was the same as in the other cases. The conservative majority had arrived.
Like any warrior, Roberts took the high ground, and at the Supreme Court, there is no rampart more protected than Brown v. Board of Education, the unanimous landmark decision of 1954 where Chief Justice Earl Warren forbade official segregation in public schools. To Roberts, any plan that assigned even a single student for a single year to a school based on his race violated Brown. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons,” the chief justice read in his flat midwestern accent. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Breyer then spoke for twenty-seven minutes, one of the longest spoken protests in the Court’s history, summarizing a dissenting opinion that he called “twice as long as any other I have written.” Kennedy agreed with the result in the Louisville and Seattle cases, but not with all of Roberts’s opinion. In a vague and confusing concurring opinion of his own, Kennedy suggested that some race-conscious plans might be permissible, but not those in these two cities. Many big-city schools were in fact already moving away from the explicit race-consciousness of Louisville and Seattle, concentrating more on raising test scores than mixing races. Thus, the practical effect of the day’s decisions was left rather mysterious and may turn out to be modest.
But Breyer wrote at such length, and spoke with such passion, because of something more than the immediate stakes. In part, he (joined again by all three liberals) was simply offended at the hijacking of Brown by the conservatives. “The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration,” he said. “And it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s, to Louisville and Seattle in the modern day.” In part, too, Breyer saw planted in Roberts’s opinion the end of all affirmative action—in employment, in business, and in government, as well as in education. The “color-blind” Constitution, long favored by Scalia and Thomas and now apparently by Roberts and Alito, would end it all. (In a brief dissent that was more bewildered than angry, Stevens made the remarkable assertion, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”)
But Breyer, most fundamentally, was talking in his long opinion about the Court. For the second time that day, he asked, “What has happened to stare decisis?