Document Type

Article

Publication Date

2008

Abstract

The silver lining behind the Supreme Court's decision to disintegrate the Seattle and Louisville public schools is that the decision also runs the risk of disintegrating judicial review. Parents Involved in Community Schools v. Seattle School District No. 1 holds that the Constitution bars voluntary, race-conscious efforts by two local school boards to retain the racial integration that they worked so hard to achieve after Brown. In so holding, the Court curiously reads the Equal Protection Clause as preventing the use of race to pursue actual equality, and instead insists on a type of formal "equality" that has historically been associated with thinly veiled efforts to disguise racial oppression--the type of oppression that the Court authorized in upholding the separate-but-equal regime of Plessy. By using the Constitution to protect passive resegregation from active integration, the current Court ends up constitutionalizing the culture's regression to the days of greater racial separation--a separation that Brown found to be "inherently unequal." As a result, the new Resegregation decision has not only realigned the current Court with its own racially oppressive past, but it has also distanced the Court from the nation's hope for a racially progressive future. Once the decision is understood in this way, the question becomes whether the case will begin to undermine the legitimacy needed for the Court to continue its activist conception of judicial review. Because the views of the Justices seem so transparently political, the threat to judicial legitimacy that emanates from the Resegregation case may end up exceeding the nation's patience for continued Supreme Court interference in the nation's racial policymaking process. There can be no assurance that the case will prompt such a reconsideration of judicial review.

Part I of this article describes the manner in which the Resegregation decision has marginalized the importance of racial integration. Part I.A. describes the Seattle and Louisville integration plans under consideration in the case. Part I.B. describes the various Supreme Court opinions issued in the decision invalidating those plans. Part II discusses the impact that the Resegregation decision is likely to have on the nation's ever-evolving conception of equality. Part II.A. explains how the decision effectively overrules Brown--by protecting the interests of disappointed white parents at the cost of advancing racial resegregation--despite the fact that it is doctrinally difficult to support such a result. Part lI.B. argues that the plurality opinion of Chief Justice Roberts now gives official recognition to an updated form of racism, in which supposed "equality" is used as a tool of racial oppression. Part III discusses the effect that the decision is likely to have on the future of judicial review. Part III.A. illustrates that the decision to invalidate the integration plans at issue can best be understood as political rather than doctrinal in nature. Part III.B. expresses the hope that such transparent judicial politics will cause the Supreme Court to lose the perceived legitimacy that it needs to continue supplanting the racial policy preferences adopted by the representative branches of government. The conclusion suggests that, while one may hope for the disintegration of undemocratically activist judicial review, the long persistence of racial oppression in the United States does not afford much basis for optimism in achieving that end.

Publication Citation

46 U. Louisville L. Rev. 565-630 (2008)

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