Conservatives Slow Slide Into Judicial Power

The conservative advance on the Supreme Court has been so glacially slow that most conservatives do not even realize that it has occurred. This slow success of the conservative agenda has been compounded by the size of the hole out of which Richard Nixon began digging in 1969. Many observers forget that in 1968 the Supreme Court declared private shopping malls to be subject to the strictures of the First Amendment.

The Court’s 1966 decision in United States v. Guest demonstrated that no fewer than six Justices favored overruling the 80-year-old civil rights cases and empowering Congress to punish purely private violations of the Fourteenth Amendment. Warren Court holdovers such as Justices Brennan, Douglas, Stewart, and Marshall provided a foundation for preserving and even extending earlier Court decisions, most prominently in Roe v. Wade. Justice Douglas even went so far as to single-handedly enjoined the bombing of Cambodia in 1973, though he was quickly reversed by his colleagues.

While the progress has been slow, it has been real. Roe has not been overruled, but it has been eroded. When the Court reconsidered Guest in 2000, no Justice was willing to directly endorse its implication. Shopping malls are in no danger of being declared state actors any time soon. And no one expects any of the present Justices to attempt to enjoin an ongoing war.

With President Bush’s appointment of Chief Justice Roberts and especially Justice Alito, conservatives can expect the pace of change to quicken. While both Justices Kennedy and O’Connor often disappointed conservatives by placing brakes on the more conservative members of the Court, they often diverged on issues where they were willing to switch sides. For example, Justice O’Connor was more willing than Justice Kennedy to allow government regulation of political speech, to prohibit government from regulating abortions, and to allow states to use race in their decision. The replacement of Justice O’Connor with Justice Alito has already moved the Court demonstrably to the right on the former two issues. A pair of upcoming cases — Parents Involved v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education will show whether the Court has shifted on the latter issue as well.

Both the plans and the legal issues involved are complicated. Basically, Seattle School District No. 1 employs an “open choice” policy that allows students to attend any school. However, the school district employs a “racial tiebreaker,” that allows the use of race in deciding who is admitted to oversubscribed schools. The Kentucky case (Jefferson County) is similar, with the additional fact that the school district was recently released from a desegregation order. In order to prevent itself from backsliding when it was released from that order, it adopted a plan which essentially categorized children as either black or white, and then assigned students to schools. If a school’s student body fell beneath 15% black, or rose above 50% black, students were assigned on the basis of race to correct the imbalance.

These cases stand at the fascinating intersection of the Court’s affirmative action and school desegregation policies. On the one hand, in Gratz v. Bollinger, the Court made clear that race could not be the “decisive” factor in admissions. On other hand, a long line of cases, stretching back to Brown v. Board of Education, indicates that governments have a compelling interest in eradicating the effects of state-sponsored discrimination, which could arguably allow for greater use of race in high schools.

Justices Thomas and Scalia are extremely unlikely to validate any use of race by government. Justice Roberts is believed by most to have revealed his hand as an affirmative action opponent in his dissent in LULAC v. Perry, when he wrote (joined by Justice Alito) “[i]t is a sordid business, this divvying us up by race.” This leaves Justice Kennedy as the likely deciding vote.

Justice Kennedy began his career as a staunch opponent of any uses of race by the state. But there are fears that Justice Kennedy has drifted from this position. In Grutter v. Bollinger, in which the Court upheld the University of Michigan School of Law’s affirmative action program, Justice Kennedy did not join Justice Scalia’s or Justice Thomas’s dissenting opinion. Instead, he joined Chief Justice Rehnquist’s opinion, and authored his own. Justice Kennedy’s opinion in particular seems to back off the earlier strong statements he had made in cases such as Miller v. Johnson regarding the use of race in government decision making. He observed in Grutter that “a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary.”

Justice Kennedy nonetheless dissented in Grutter, and voted with the 6-Justice majority to strike down the University of Michigan’s more mechanical undergraduate affirmative action program in Gratz, because he found that neither program was sufficiently narrowly tailored — that is, used the minimum amount of racial categorization needed to achieve the stated goal. Given that, it seems unlikely that Justice Kennedy could countenance what amounts to an outright quota system that requires that certain schools meet a specific racial mix — something the Court expressly rejected in Gratz.

But the result may be less important than how the decision is reasoned. Assuming Justice Kennedy votes to invalidate the programs, the Court could vote that the program was not sufficiently tailored the government’s interest. Such a case-specific decision would do little to upset the status quo. A broader ruling would hold that high school is different than college, and that the interests present in achieving diversity in college simply are not present in the high school setting. Either of these approaches would be consistent with the incremental advances made by conservatives over the past three decades.

There is also a third option. At the end of her Grutter opinion, Justice O’Connor opined that “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The Court could decide that such a day has arrived 22 years early, and that affirmative action policies in education are appropriate only in extremely rare circumstances. If the Court chooses that option, we will know that the advance of the conservative agenda will no longer be glacial, and that serious changes in constitutional law are likely on the agenda for the next decade.