Conservatives received a double dose of good news yesterday as
the death of immigration “reform” was met with an immensely
important ruling from the Supreme Court. Chief Justice John Roberts
delivered the majority opinion for the Court, holding that school
districts in Seattle and Louisville may not assign children to
particular schools on the basis of race.
In a line for the ages Chief Justice Roberts explained: “The way
to stop discrimination on the basis of race is to stop
discriminating on the basis of race.” Equally moving was Justice
Clarence Thomas, who wrote: “What was wrong in 1954 cannot be right
today. The plans before us base school assignment decisions on
students’ race. Because ‘our Constitution is colorblind, and
neither knows nor tolerates classes among citizens,’ such
race-based decisionmaking is unconstitutional.”
However, the victory was dampened somewhat by Justice Anthony
Kennedy, who joined in the result but refused to join the portion
of the opinion declaring that achieving “racial balance” cannot be
a “compelling interest” — i.e., a justification for racial
classification by the government. According to Justice Kennedy,
race may still be used as a factor if all other alternatives are
exhausted.
Nevertheless, the ruling pointed out the significance of the new
chief justice and of Sandra Day O’Connor’s replacement, Justice
Samuel Alito. O’Connor was the deciding vote in Grutter v.
Bollinger, a 2003 Supreme Court decision which upheld the
notion that race could be one of many factors in determining
admission to universities. Justice O’Connor memorably intoned in
that case: “Twenty-five years from now, the use of racial
preferences will no longer be necessary.” Apparently the clock used
by Alito and Roberts is set differently.
The importance of the decision was not lost on Democrats, Ward
Connerly (the champion of measures to abolish racial quotas and
preference including last year’s successful Michigan Civil Rights
Initiative), and conservative activists.
Hillary Clinton was the first Democrat out of the box,
predictably bemoaning the Court’s decision. If Clinton saw dark
clouds, Connerly saw rays of sunshine, declaring in a released
statement: “The Supreme Court today made a glorious decision that
directly fits with our plans to eliminate race in all facets of
American public life.” He continued: “This Supreme Court decision
shows that the era of race preferences is quickly coming to an end.
The Court is finally starting to catch up with what the American
people have known for years: Race has no place in American public
life.”
Roger Clegg, president and General Counsel of the Center for
Equal Opportunity, said simply “we won” and that he believed “the
practical impact will be significant on school boards” who likely
will recognize that they are “asking for trouble” if they use race
to assign students to schools.
It remains to be seen whether this will impact the 2008
Republican presidential nomination. Rudy Giuliani was the only GOP
candidate to respond to request for comment, stating: “I applaud
today’s Supreme Court decision striking down the racial preferences
used in determining students’ public school placement. I completely
agree with Chief Justice Roberts that ‘the way to stop
discrimination on the basis of race is to stop discriminating on
the basis of race.’”
In the days ahead one can expect that Giuliani will remind
voters of his strong stance against racial preferences while mayor
of New York. Having run on the slogan of “one standard, one city,”
he can boast that as mayor he withstood harsh criticism from
liberal civil rights groups and abolished minority set-asides and
eliminated many race-based affirmative action programs. Senator
John McCain and former Gov. Mitt Romney have made statements in the
past opposing racial preferences and quotas. As for “testing the
waters” candidate Fred Thompson, one of the former Tennessee
senator’s rivals pointed out shortly after the opinion came down
that he voted twice in 1995 in favor of affirmative action. (His
campaign did not return a request for comment.)
Aside from any ramifications in the presidential primary, the
decision was remarkable for conservatives for two reasons. First,
the Court’s ruling on its own terms reflects conservatives’ view of
America as a society based on merit and individual, as opposed to
group, rights. The Court’s opinion is a teachable moment for the
country at large. The message is simple: the government should not
treat people differently based on race.
Second, it comes as a much needed boost for those who have come
to view the Bush years as dismal ones for movement conservatives.
The Congressional majority has slipped away and the current
Administration is a subject of derision and contempt by many. The
record of Medicare Part D and No Child Left Behind and the
near-death experience with immigration reform has pained many
conservatives. The picture on the international front is no less
grim. However, a real and significant shift in the Supreme Court
may be the Bush administration’s most lasting and historical
achievement. The work of conservative activists, judges and
academics is bearing fruit — a powerful reminder that
Constitutional battles are won over not just years, but
decades.
Together with the Court’s ruling upholding the federal ban on
partial-birth abortion and invalidating McCain-Feingold’s issue ad
ban, the school cases make clear the Court’s direction. Whether
incrementally or in bold strokes, the Court no longer will be the
handmaiden to the liberal social agenda. If the left wishes to
impose an agenda of abortion on demand, racial quotas, gay
marriage, and other social experiments, it will need to convince
the public and enact its will through either legislation or
constitutional amendment — no easy task, but an altogether
appropriate result in a country that fancies itself the world’s
great democracy.
Nevertheless, the business of legal conservatives is unfinished,
as aptly illustrated by Justice Kennedy’s concurrence, which joined
in the result but left open the distinct possibility that race may
still be used as a factor by the government in determining how it
treats its citizens. If ever there was a warning that the next
Supreme Court justice pick will be critical for generations to
come, this case should remind conservatives that the Court matters
but is not yet “won.”
For the country at large, the ruling highlights the difference
between the parties. The Democratic Party is determined to maintain
a Rube Goldberg-like system of racial preferences and quotas. The
Republican Party defends the view that the government should rarely
if ever be allowed to classify its citizens by race. If elections
are about clear choices, this issue provides one of the starkest
for the American electorate. Republicans are banking that most
Americans are on their side.
