The recent elections made it hopeful that the heyday of right-wing reaction is over. But elections don't affect the Supreme Court, and while the country was rising up against the Iraq war, the court quietly began to enact its own agenda. The results could be ominous.
The first case to indicate a seismic shift in the court, which now has a five-member conservative majority, involves school desegregation. Seattle and Louisville have had difficulties achieving racial balance in their school systems (Louisville's desegregation efforts were under court control for 25 years). Both cities devised a plan that involved admitting or denying children admission based on race. At times this meant allowing a black child to attend a certain school while keeping out a white child based entirely on race.
Was this fair? Every lower court has said that the end justifies the means. The great problem in this country is de facto segregation, the division of cities according to where whites and blacks live. Integration is meaningless as law if the reality is separation by neighborhood. In the fifty years since Brown versus the Board of Education, the Supreme Court has agreed with this principle.
Until now. After a heated debate behind closed doors over whether to hear the Seattle and Louisville cases (the Supreme Court almost never takes a case when the lower courts are in total agreement), the conservatives showed their hand. They intend to legislate from the bench without check, the very thing they rail against. Justices Scalia and Thomas have a track record of wanting to overturn law far greater than any liberal justice. The Roberts court seems to want to follow suit.
Observers during the oral arguments felt a palpable change in the court's tone (as reported by Linda Greenhouse of the New York Times). It was obvious from the justices' comments which way these two cases will go. The two desegregation plans will be ruled unconstitutional, and in the wake of this decision, we can expect many others to be outlawed as well. Of course we don't know the details yet. School systems may still be allowed a measure of choice in placing black and white students in various schools. That will depend on how hard the moderate-liberal majority fights when the decision is drafted.
We will just have to wait. Getting rid of desegregation has been a not-so-secret part of the conservative agenda for decades. The right wing rose to power by inviting in bigots with open arms. No one speaks openly about this, but the racial political ads in the Tennessee senate race, which implied that the black candidate was sexually interested in white women, pulled the lowest punch quite effectively.
It will be a sad day when America gives up on integration. Conservatives will call it an experiment that failed or something of the sort. But morality tells us that the end really does justify the means here. You can't get racial integration without looking at individual students according to race. To claim otherwise because of some legal loophole justifies a great wrong. It's not that far from the doctrine of separate but equal (a creation of the Supreme Court now looked upon as shameful), because in both cases a mythical fairness that exists on paper ignores a gross and very real injustice. Just as Bush and his Republican predecessors intended, an immoral agenda can best be achieved by packing the courts.