Don't Be Obtuse, Mr. Chief Justice

^{See Also: School Desegregation After Parents v. Seattle District}

Photo: Mark Wilson / Getty Images.

The Supreme Court's 2006 term has come to an end not with a bang, but with a whimper. Like many others, I will no doubt spend much of the summer poring over the Court's rulings, discovering an unexpected nuance here, an unexpected implication there. Supreme Court rulings lend themselves very well to a kind of secular lectio divina, a reflection of the fact that they perhaps resemble works of philosophy more closely than any other government documents could.

But every now and then, I read something that makes me question not only the meaning of a ruling, but the intelligence of its author. I am not the sort of writer who looks at a Supreme Court ruling he disagrees with and assumes that the authors must have had evil or foolish intent. If someone is on the Court at all, I assume for the sake of argument that this is someone whose knowledge of sound legal reasoning far exceeds that of this non-lawyer, yes--but I also credit our fine justices with a level of animal awareness that I might not attribute to an average judge. Presidents appoint Supreme Court justices, and senators approve them, to make themselves look good if nothing else. A raw, visible intelligence is key.

Samuel Alito, for example, is a genius. He is probing, perceptive, self-critical. Anyone who listened to his Senate hearings at any length realized that whatever his faults may be, a lack of awareness is not among them. He is, in the word's deepest etymological meaning, a smart man.

I am beginning to wonder if the same could be said of Chief Justice John Roberts. There is a line in yesterday's ruling that has stuck to the roof of my mouth like peanut butter in a dry heat, and I just realized why. In section IV of Parents v. Seattle, the Chief Justice wrote:

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

It reminds me in some ways of Vice President Dan Quayle's similarly tautological remarks following the Los Angeles Riots: "Who is to blame for the rioting? The rioters are to blame." But at least the Vice President's comment had a certain logic to it: He was arguing that the rioters were solely responsible for their own actions. Fine. A little simplistic, but at least you can follow the reasoning.

But Chief Justice Roberts' statement falls into a different category in that the harder you think about it, the less sense it makes. Is Chief Justice Roberts arguing that the reason schools are still segregated today is because the government has attempted to desegregate them? If that isn't what he's arguing, then what, exactly, is he arguing? There is one point in the ruling where he almost, but not quite, answers that question. Quoting from Justice O'Connor's plurality ruling in Wygant v. Jackson Board of Education (1986), Chief Justice Roberts writes:

Allowing racial balancing as a compelling end in itself would "effectively assur[e] that race will always be relevant in American life, and that the 'ultimate goal' of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race' will never be achieved."

The chief justice favors, instead, multi-spectrum diversity quotas. Fair enough. That's not necessarily a bad strategy. The Seattle and Louisville programs were awkward, mechanistic, and apparently ineffective--ineffective quite probably because they were awkward and mechanistic. These sorts of policies, if they were adopted nationally, would be problematic. Maybe the Court would have even been justified in striking them down, in a narrower and less ambitious ruling.

But the chief justice isn't talking about the hypothetical future consequences of two extremely small-scale programs. He writes instead about long-term institutional discrimination and how to get rid of it. And the way to get rid of long-term institutional discrimination, if you read his statement at face value, is not to confront or compensate for it, but rather to ignore it.

If he had said "In our zeal to prevent discrimination on the basis of race, we should not discriminate on the basis of race," that would have been a logical enough position. But what he wrote, as the punchline to the entire plurality ruling, was that "the way" to prevent racial discrimination is to do away with ineffective racial balancing programs.

Let's assume, for the sake of argument, that racial balancing programs contributed to the problem of racial discrimination. Wouldn't his statement still basically be tantamount to telling police officers that the best way for them to reduce the crime rate is to stop committing crimes? Or to tell celibate priests and nuns that the way to promote abstinence is to stop having sex? The song does not go "Let there be peace on Earth, and let it end with me." The problem of long-term institutional discrimination is still real, and to whatever extent the government allows this discrimination to remain part of our public school system, it is violating Fourteenth Amendment guarantees. This was the whole point of Brown v. Board of Education: Separate is unequal. If the separation is not a specific and intentional government program, that does not change the fact that it systematically promotes racial discrimination at taxpayer expense and therefore violates the Fourteenth Amendment.

I'm not clever enough to know what the solution to the problem of school segregation is, but I'm clever enough to know it's a problem. Anyone who spends five minutes looking at the statistical impact of low-quality education on communities of color is clever enough to know it's a problem. And if the Chief Justice of the United States is not clever enough to know it's a problem, then that's a problem, because it is his Supreme Court that is responsible for determining how that problem can be solved. As an American reading the Chief Justice's glib punchline in the context of a ruling on school segregation, I feel sort of like I'm about to have my root canal performed by a cosmetologist.

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