George W. Bush, whose father was often accused of being to cautious and
incremental by conservatives, came into office six years ago with an ambition
to remake nearly everything about American government. In some cases, like
Social Security and immigration, he hasn’t been able to get the big changes he
wanted. I others—Iraq, tax cuts, civi liberties, the environment, education—it
seems clear that his successor whoever it will be, will have to spend a good
deal of time undoing what was supposed to have bee Bush’s legacy. But the
President has achieved one wholesale change that will likely endure for a
generation the construction of a distinctly right-wing Supreme Court
Just before the end of the past term, the Court issued a decision, written by
Chief Justice John Roberts, that signalled a complete departure from more than
half a century of jurisprudence on race. The case is called Parents Involved in
Community Schools v. Seattle School District No. 1, and it addresses a legal
challenge to two city school systems—Seattle’s and Louisville’s—for consciously
trying to achieve racial integration in assigning students to particular
schools. Roberts, in his decision, is almost reverential toward the last major
Supreme Court decision on race, which in 2003 upheld the University of Michigan
Law School’s use of race as a factor in admissions. But the thrust of his
argument—“The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race”—makes it impossible to imagine that he
would have joined the majority in the Michigan case had he been on the Court at
the time.
Justice Clarence Thomas, who dissented in the Michigan case, wrote a concurring
opinion in the Parents Involved decision that is far more confrontational than
Roberts’s, and lays out once again his long-held view of race and the courts. We
have a “color-blind Constitution,” he asserts, even though the Supreme Court
refused to recognize this until its monumental, unanimous decision in Brown v.
Board of Education, in 1954. The essence of Brown, Thomas believes, is an
absolute prohibition on taking race into account for any reason. “What was wrong
in 1954 cannot be right today,” he writes.
The Parents Involved decision—and, indeed, nearly the whole modern history of
Supreme Court decision-making on race, including Brown—rests on one resonant
passage in the Fourteenth Amendment to the Constitution, which says, “nor shall
any State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of
the laws.” But, as a matter of history, the idea that the amendment was meant to
make the country “color-blind” is wrong, and wrong in a way that is instructive
for people thinking about American race relations today....
