Political Hay

Color Blind Court

The Supreme Court reaffirms equal opportunity -- and reminds Americans which party supports racial preferences.

By 6.29.07

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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.

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