Nathan, that is a very interesting and, for me, unique look at the Supreme Court. I have been in the crowd that assumes the laws gradually approach harmony with the Constitution as each court decision comes down. This latest segregation ruling does break down my assumption, no doubt. So, I can't disagree with your position. Reading old court decisions is really revealing about how our Constitution means whatever the current majority in Congress and the Presidency thinks.

Hoppy in Sacramento

Who'd have expected that a "conservative" court would see its role as the Supreme Divider in a nation already so divided it seems to have lost the capacity to be governed.

Of course the recent decision was not a “segregation” decision. It is essentially the same as Brown. The court held that the government may not assign children to schools based on their skin color.

The difference is the reason for violating the constitution. Is it O.K. to violate the constitution if it is for a good reason as determined by some legislature? If so, why have a constitution?

I agree legal realism is the ground-state, and also that there is, consequently, a tension between political pragmatism, and intellectual consistency (or pretensions thereto).

And thank god there is, because IMO this tension has enabled most of the meaningful growth in the law over the past 75 years. Messy? You bet. Do things predictably move in the right direction? No. Are these cases the last word? I doubt it.

But certainly "hating the court," and, almost as certainly, saying that "law is intellectually totalitarian," are not examples of legal realism or intellectual consistency. They are jets of frustration.

I think the constitution is quite clear about government discrimination based on skin color. Students may of course be assigned to schools for other reasons.

Have any of you ever read a biography of Earl Warren. He was the Republican Governor of California. He was selected by Eisenhower to do nothing. After he was named Chief Justice he experienced life in a profound way that affected his view of the court and his view of his responsibilities as a chief justice in a profound way. If you look you will see that he always worked hard to gain a unanimous or near unanimous decision for all or nearly all of his most profound decisions. For example Brown v. Board was 9-0. He didn't control the court from the edge. He controlled it with the force of moral authority. That is what Roberts lacks and what most of the Chief Justices since Warren have lacked. Of course, unlike Roberts, Warren knew how to achieve consensus. He had been the Republican governor of California.

Until Roberts learns how to convince all of the members of the court to back his decisions, his will be a fragile legacy.

Ron Byers

Nathan, your post seems like a lot of whining. I don't know what it means for something to be "intellectually totalitarian," and I am left to assume that you wanted to throw out some scare words.

Lots of people complain about the countermajoritarian difficulty of the Supreme Court, but I have never been convinced that it is inconsistent with democracy. We need to realize that democracy requires countermajoritarian measures to keep itself running.

In my opinion, a wise justice would be one who has the ability to balance the often divergent interests of a pluralistic society so that our democratic project remains viable. That is the lesson of Marbury v. Madison that ought to be taught in our law schools.

Funny how far and fast everyone moves from Nathan Newman's primary thesis--public service in some other capacity than lawyering and judging makes for better judges--into a pick apart of the language he uses.

Someone has already mentioned Earl Warren as a case of a great justice coming to that position from an executive position in a state as diverse in interests as one could be.  If one looks at the current Liberal Judges one notes some interesting things:

• Justice John Paul Stevens, worked for the legislative branch and taught anti-monopoly law, among other things.  He didn't become a judge until he was fifty.
• Justice Souter, began his legal career in the executive branch as Deputy Attorney General and later Attorney General of the State of New Hampshire.  Expected to be Conservative, he moved steadily left.
• Justice Ruth Bader Ginsburg spent her early career as an academic, legal scholar, and litigator for the ACLU
• Justice Steven Breyer also worked for the legislative branch of government, serving as a Counsel to the Senate Committee on the Judiciary.  He also taught law, not only in this country, but in Sydney Australia and Rome.

I wouldn't say this confirms the thesis Nathan brings us courtesy of the Scotusblog.  It may modify it however.  Perhaps these persons didn't serve elective office, but they worked for persons who did.  They also had extensive experience as advocates and scholars which I would say connected them to the "real world" to a greater extent than the careers of the right wing judges have.

One cannot put too much weight on it (I guess the pun is intended) if one considers

• Chief Justice William Howard Taft who, in the Presidency, actively worked to break up trusts, and though not progressive enough for Teddy Roosevelt, is generally considered to have had progressive views.  On the court, he wrote decisions which would disappoint progressives today:  for example, extending segregation in Mississippi to classify Asian children as excludable from white schools.

aMike

Several biographies mention that Warren, occasionally in open court but invariably in the justices' conference, would ask a question not part of formal law: "But is it fair?"

--
Howard

*equal opportunity offense to both extremes*

"Those who cannot remember the past are condemned to repeat it" [George Santayana]

My answer to Nathan's question would have to be no. There are plenty of conservative legislators, and indeed we're struggling with them in Congress every day. I suspect that Bush's previous choice, his idiot staff member, would have kowtowed to them just as much.

Conversely, the court is now imposing a political agenda in reversing professional jurists in lower courts, and the idea of a third branch is to put law, including the interpretation of laws and the Constitutional framework itself, above the whim of those executing the laws, of legislators, and even at time of the people. That's why we have a Bill of Rights, too, which the court surely does not see the way I do. It's not political reality with which the court is out of touch: it's reality, period. 

Alas, we're stuck with the horrors of this court for many, many years to come. But I don't blame the Constitution or the experience of the jurists. My father always said to take presdential elections so seriously because the court that presidents appoint will do more to shape the future than anything else. After all, few nominees have been rejected in all of history, the grounds for rejection will always be murky and have some semblence of considering qualifications rather than to the president's politics, and anyhow the president always has an infinite stock of replacement bozos. (Banking on congressional obstinacy is like winning the war on terrorism by invading Iraq to create more and then killing all the terrorists.) If you ask me, it's the political process that broke down each time Bush got in.

John

http://www.haberarts.com/

Then get members of Congress ELECTED to change the laws. The Court should NOT be the means of getting this done. Democrats have electoral majorities and may win the presidential election in 2008. Do it the RIGHT way, not through overreaching judges. In the long term that will only hurt a good cause by making people distrust what their government is doing.

Out of touch with political reality?

Nay.

This court is nothing, if not in touch with political realities. Right wing politics. We can trust that from here on in, they will favour agenda over justice, their friends over truth, they will rewrite the law as aggressively as they will rewrite history

It was not my experience as a school child that I had any choice in the matter whatever. Whichever side you argue here, the children aren't getting to choose their futures, the adults are. The children just live with the choices.

We are more than 50 years from Brown v Board. Some here applaud Obama and Powell and Rice. Amazing isn't it that we can count them on one hand and count that social justice. Our original sin is slavery. We still show the social costs and we will show them long into the future.

The court has just made social change more difficult. It has reinforced those who choose not to change, and who as adults have the power to make that choice for their own children and for the children of others.

I expect that if this country is to ever have social justice on matters of race, it will not be constitutional purists who get us there. It's more likely to be illegal immigrants. Americans will be forced to change eventually, at what cost we don't know.

But judicial decisions SHOULD BE ABSTRACT because they have to withstand the test of time over decades when situations and experiences change.

Reading a post like this leaves me wondering if the author even understands the role of the Supreme Court at all.

People who take Nathan's position -- on both the left and the right -- focus on the outcomes of the decision: What societal end does it hurt or help? For the Right, does it help limit abortions? For the Left, does it help end segregation?

But achieving outcomes is not the primary role of the court, because it is not the role of the court to determine what outcomes society should seek.

Rather it is the role of the court to determine by what means society may seek to achieve its ends. How laudable the goal that is sought is mostly irrelevant, unless the goal is one given particular significance by the Constitution itself or one particularly outlawed by the Constitution itself.

Those who don't understand this inevitably think that a Court's ruling against their favored means of achieving an end is a vote against the end itself, which isn't necessarily so.

That's a fine theory. As a matter of fact, we've got the most politicized SC in, well since I don't know when, and that is no accident.

The moderates have given the courts to extremists because they have been unwilling to acknowledge that the right is waging a deadly serious ideological war with enormous real world outcomes.

If you want to focus on means, focus on the range of means the right has been using over the past 30 years without opposition.

None. All appointees say they will uphold Roe. They've learned to hide their strong positions. Roberts and Alito said they honor precedent, and proceeded to overturn it.

The issue isn't trying to justify punishing current citizens, etc. but trying to redress wrongs committed by our government, our nation as a whole. Just because no one living today was a slave on a cotton plantation doesn't mean that people are not still suffering from the long lasting effects of our country allowing such an institution for so many years. And, we are hardly discussing punishment in any case, but the apportionment of "rewards" or opportunities among our current citizens.

Contrary to much propaganda, the majority citizens in our country are not suffering punishment, losses of opportunity, or anything else that even begins to compare to what racial minorities have suffered for generations.

Hoppy in Sacramento

You are making what in your mind is a moral argument. I think there are serious due process problems with your argument. That is why we have a court system, like it or not.

So, should we set aside the constitution so the we can ban pornography, demonstratins by the KKK. communist party, allow prayer in schools? Be careful what you ask for.

Rather it is the role of the court to determine by what means society may seek to achieve its ends. How laudable the goal that is sought is mostly irrelevant, unless the goal is one given particular significance by the Constitution itself or one particularly outlawed by the Constitution itself.

I have a bit of difficulty with this formulation, both logically and historically.  Logically, the difference comes in the assumption that means and ends are distinct entities unto themselves.  I think this is incredibly hard to prove.  One uses all sorts of qualifiers in recognition of this difficulty.  J. S. Mill's Utilitarianism argued there is no logical way to separate means from ends in the moral domain.  Consequentialism is the philosophical theory defending this point of view to this day.  Much of our litigation is based on the difficulty of sorting out means and ends, cause and effect, and intent, i.e., proximate causes in assigning responsibility.  Are things good because they are means or good in and of themselves--things like Democracy, for example.  Is it a means or an end?

Historically the problem is an assumption that ends are fixed and immobile.  This is what gets the strict constructionists into the most trouble.  Good as the founding fathers may have been, knowing as much Cicero, Aristotle, and Locke as they did, they had no crystal ball.  Our constitution has survived with only 27 amendments in 200 plus years because the political culture has deliberately blurred the kind of distinction this argument makes, for good or ill.

One case in point:  Are corporations Persons?  They have been considered so, but only since 1886.  The court didn't rule on this directly but comments made in the course of deciding a case have had the effect of precedent since.  So, Corporations have Free Speech Rights, just like other people.  R. I. P. Feingold/Cain.  Nothing in the Constitution itself or in the Federalist Papers suggests that Madison and the rest had even a germ of this idea in their minds in Philadelphia.  Again, I say "for good or ill'.  MOST of the time I think it's nuts to consider corporations judicial persons, but I don't believe that this can be unraveled.  We just work our way around conundrums, and the Constitution remains a living document. 

Another case.  The vaunted two party system.  The men at the Constitutional Convention wanted no durable political parties.  They hadn't a clue that the court could be politicized, dividing roughly as the country divides over the long rung.  But not knowing that political parties would not only endure, but write themselves into law, it was inevitable that the Supreme Court be no less political than the legislative or executive branches of government.

Where is there any constitutional provision for primary elections?  Political parties are private corporations--yup, artificial persons.  Yet general revenues in the states support either primaries or caucuses, and these private meetings are frequently held on public property.  Every time one turns around one hears a hymn to the two party system.  Not in my church.

If this were an abstract world, then decisions could be abstract.  But it isn't.  In these particular cases, I'm deeply suspicious that while it isn't necessarily so that the ruling was a vote against the end itself, given what I know about the history of the men who voted for them and the party that nominated the most recent of them, I think the burden of evidence is that the end is no more palatable to them than the means.

Ultimately, it may be important to have the courts more deeply involved with the community, rather than abstracted from it.  A series of papers from the National Center for State Courts has some interesting ideas about this.

aMike

you can't dismiss someone's principled stand as fake, Hoppy. You would bristle at such accusations. RTL's have their own reasons for their position, and they believe in it passionately. Their ideology is hardly a creation of politicians.

Every President is going to nominate a justice in line with their political Party's platform. Ruth Ginsberg chaired the ACLU for a while. But here's the question -- if Ms. Ginsberg happened to waver publicly in her support for a woman's right to choose, would she be sitting on the Supreme Court today -- despite her other qualifications or positions on other issues? Would Bill Clinton have even considered nominating her? The answer to this question proves how tainted the process has become by this single issue.

Quite the contrary, you can dismiss someones principled stand. NAMBLA takes a principled stand and I certainly dismiss it. The NRA takes a principled stand and I dismiss it. The "Right to Lifers" are not taking a principled stand. If they were they would have discovered their principles long before they did. When it became essential for Repubs to be elected the principles came to a head. I dismiss that.

Hoppy in Sacramento

Busing is a meat-ax solution, which incurs significant economic cost as well as hardship for students who must take long journeys by bus, and perhaps be cut off from extracurricular activity.

Let me propose a hypothesis: what if Brown had not cited race as an independent variable, but had instead identified a disparity in educational achievement. Would it have been just and fair to have had a goal of equivalent performance of equivalent student groups in arbitrary groupings of schools? I say "equivalent student groupings" to allow what I believe to be reasonable accomodations for developmentally disabled or gifted & talented students.

Bronx High School of Science, IIRC, has produced seven Nobel prize winners, which relatively few universities and even countries has managed. To try to fix that sort of thing is to fix something that isn't broken.

I don't have a simple answer to correct for schools that have significant parental involvement. That's not an economic matter alone. While I was a little unusual as a latchkey child in a single-parent household in the late fifties to mid sixties, that's much more common with two working parents, both highly compensated professionals with long workdays.

--
Howard

*equal opportunity offense to both extremes*

"Those who cannot remember the past are condemned to repeat it" [George Santayana]

Mr. Brown: Actually, the recent decision could best be described a "re-segregation" decision for that is the effect of the decision. And if you read Brown v Board of Education, you will see that there is no comparison between the two. What Brown states, inter alia, is that "separate but equal" is inherently unconstitutional under the 14th Amendment. What this past week's decision effectively said is that "separate and unequal" is constitutionally acceptable. In effect, this past week's decision over-ruled Brown.

It is important to note that Brown did not say placing students into particular schools based on race was unconstitutional. Brown spoke of results, not the means. Brown stated that the law could not be used to disadvantage a racial group. Justice Roberts' opinion merely echoed the long-held arguments of segregationists and other white supremists--and it is for that reason he was placed on SCOTUS by GWB. In these cases, no racial group was disadvantaged; rather in the recent cases white students were offended because they were not given preferential treatment--in these cases both blacks and whites were equally impacted. There is nothing in the Constitution that requires preferential treatment for advantaged persons contrary to your contention.

Fortunately, non-bigoted school districts can get around the most recent ruling as Justice Kennedy noted. Unfortunately, bigoted school districts now have a free pass to create segregated, unequal schools without fear of a court challenge. And, as well have already seen, schools are becoming increasing segregated again thanks to the segregationist wing of SCOTUS over the past 20 years.

The best hope we have of an integrous court is the next president (in tandem with a filibuster proof Senate majority) will have the opportunity to replace at least 2 (Kennedy, and/or Scalia, and/or Thomas) of 5 justices who ruled in favor of segregation. Sadly, the current court is one that Andrew Johnson (a slave owner who, as president, sought to re-institute the Confederacy after the Civil War) could have loved.

BTW, Nathan's article is right on the mark to a point. While none of the court's members have experience in the legislative arena, all four dissenters have had significant experience outside of government, outside the judiciary. This cannot be said of the five justices in the majority. Historically, SCOTUS has comprised a diverse mix of persons from the public and private sectors, at least one or two serious Constitutional scholars (there are none now), at least one or two with experience in elective state office (there are none now), and at least one or two without prior judicial experience (there are none now). What Nathan is saying, I believe, is that SCOTUS needs some diversity and this is especially true on the reactionary-right side of the court.

Finally, Mr. Brown, mis-using the Constitution in an effort to maintain inequality is simply dishonest and immoral and does not comport with Constitutional construction. The Constitution, today, does not provide any language to maintain the superiority of white rich people contrary to yours or Justice Roberts' opinion. The prohibition on racial discrimination is a statutory one (Civil Rights Acts of 1964 & 1965).

Tom, you are correct.

Brook, there is no logical argument against women determining their destiny vis-a-vis abortion except religious ones. Calling a fetus a life is a matter of religious faith not of objective fact. While a vast majority of Americans support a woman's right to choose, a small, religious nut-group minority continues to advocate an unconstitutional enslavement of women and of people of color. There is no secret in Nixon'x southern strategy to enslit the sexist, racists forces of the south even tho' they are a small minority of the American population.

What you are really asking, Mr. Brown, is what is the constitutional basis for denying preferential treatment to wealthy white students. This argument has nothing to do with school choice. It has everything to do with prefernces for wealthy white parents to shield their children from fellow black students.

Brook, there is no principle behind RTLers... it is has not basis in theology, it has no basis in science, it has no basis in philososphy... it simply as no basis in anything other than emotion.... As for JUSTICE Ginsburg, she is the last of a very few qualified persons nominated to the court.... principle means nothing to conservatives as they have no principles, being stubborn, igornant, and ideological means nothing short of destroying the Constitution. JUSISTICE Ginsburg supports a woman's right to choose because she has the temperment and requisite knowlege of the constitution to be on the court.

Roberts and Alito were placed on SCOTUS because they had demonstrated on the CCA that they reject constituional principles. The 14th Amendment guarantees a woman's right to choose whether she is to be a man's baby factory or not... there is no constitutional basis for an anti-choice position as a fetus is not a person except in the minds of religious nuts.

Ikez78: Under the US Constitution, the rights of citizens do not require the approval of the majority. What you are advocating is that the courts should not enforce the provisions of the Constitution if the majority does not agree. The purpose of the courts is to enforce the Constitution not the desires of a bigot-white majority.

After making several posts here, it has become apparent to me that the disagreements here need to be defined: The disagreement is one of (1) mythological religious traditionalists vs (2) objective fact-based realists. The United States was founded on the principle of Enlightenment, of objective facts over religous delusionalism. The religious nuts of the US have fought a galant battle against reality for 200 years... however, in the end reality has always and will always triumph over religious delusion as best expressed by recent polling which shows young (

CommonDreamer,

While you make a decent point, the Supreme Court is also intimately involved in regulating permissible ends in our society. The Constitution itself is quite clear on this in several areas. For example, it is an impermissible goal to establish religion in the United States. Without any other goal in mind, it would be quite unconstitutional for Congress to pass a law making the Southern Baptist version of Christianity the official state religion.

However, it is also true that when the government has other goals, it may sometimes offend the Constitution through its chosen means. So, providing government funds to religious organizations may offend the Establishment Clause even if the true goal of the program is to alleviate homelessness.

So, means and ends are not as separate as you would have them be, especially since it is often impossible to tell what a politicians true motivations are. I personally don't see Bush's "Faith Based" programs to be about alleviating homelessness or other social ills, because, to me, they have always appeared to simply be a way to provide government support for religion. The same can be said of other right-wing programs in this country such as school vouchers.

Finally, means and ends are tied together in fundamental ways. Whatever your goal is, there is only so many ways to achieve it. When one avenue is struck down, the possibilities for achieving the goal become more restricted.

Ultimately, a facially permissible goal can be blocked through outlawing all effective means. So, people who "think that a court's ruling against their favored means of achieving an end is a vote against the end itself" often are not that far off. So, it is clear to me at least, that the Court does a lot more work than simply deciding which means are constitutionally permissible and which ones are not.

It seems to be a pretty good litmus test on whether the justice is going to be willing to deny rights to everyone else too.

So far, it's the wishful thinking, appease anyone and anything, moderates who are being proved very wrong.

pg, it wouldn't hurt you to visit a church every now and then, just to expose yourself to reality. I don't know many religious people that have ever subscribed to the ideology you're subjecting them to.

You have the right of it, Tom.  It was in a trope on the decision and not in the decision itself.  And isn't it ironic?  What's more, this person can live ostensibly forever, and because this person can live forever and is distinct from the flesh and blood persons who, what, "inhabit" it like so many little corpuscles (directors, trustees, corporate officers, and the like), their accountability is limited, the corporation's accountability is limited to financial penatalies (can't lock them up) and the owner/stockholder's liabilities are limited to the value of their investments...all because of sloppy proofreading.

aMike 

Read the Constitution. The "unborn" have no rights. In fact the very concept of "unborn" is a flawed one if you are discussing laws. Religions have every right to their beliefs, but those beliefs do not belong in our laws.

Hoppy in Sacramento

Brook, there is no logical argument against women determining their destiny vis-a-vis abortion except religious ones. Calling a fetus a life is a matter of religious faith not of objective fact.

So for that matter is the belief that governments have some obligation to respect rights, or the idea that women have rights, or the idea that if an ethnic group has control of a country that it should not enslave other ethnic groups. 

"You say I'm a dreamer.  We're two of a kind.  Looking for some perfect world that we both know that we'll never find." - Thompson Twins, "Hold Me Now"

Ultimately, a facially permissible goal can be blocked through outlawing all effective means.

If the means are blocked, then maybe the end ought to be blocked.  What you are really saying is that if a goal is good, the Supreme Court should just ignore the Constitution.

In any case, there is always a means to achieve a goal even if the Court blocksall legislative and executive attempts to achieve the goal: amend the Constitution. 

"You say I'm a dreamer.  We're two of a kind.  Looking for some perfect world that we both know that we'll never find." - Thompson Twins, "Hold Me Now"

But today it makes decisions that are political.

As opposed to when, exactly?  Or do you claim that the Warren Court decisions were not political?  Does political simply mean that you disagree with them? 

"You say I'm a dreamer.  We're two of a kind.  Looking for some perfect world that we both know that we'll never find." - Thompson Twins, "Hold Me Now"

What you are really saying is that if a goal is good, the Supreme Court should just ignore the Constitution.

No, dude, I'm not saying that at all. You're reading into my comment a conflict that doesn't exist. Feel free to troll somewhere else.

Amending the Constitution basically doesn't work. The Constitution is far too difficult to amend requiring only 13 states to block any potential amendments. The last amendment, ratified in 1992, had been bouncing around for 200 years before it got enough states to agree. The amendment process has effectively fossilized our political structure.

Anyway, as I said, feel free to troll somewhere else.