Tom Goldstein tries to make the best case that Justice Kennedy's concurrence in the Seattle Schools case is controlling, and may not be that bad. His step-by-step analysis is plausible in theory, although with very limited application to districts that are dead-set in maintaining integrated schools despite (almost universally) segregated housing patterns. But I am not persuaded that Goldstein adequately accounts for Kennedy's own application of his "reasoning" to the facts of Seattle and Louisville. Roger Friedman makes the point well:
SCOTUSblog:
As Breyer's dissent makes perfectly clear, if the use made of race in these cases cannot be justified, there is no use of race which can be found justified. We are left in the same state as in political gerrymandering, Kennedy in theory remains open to the use of race but not on any basis known in law or fact.
No comments:
Post a Comment