Kennedy writes separately to chastise the plurality opinion for its 'all too unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.' Refusing to enshrine 'color-blindness' as a constitutional principle, he pins his opposition to the program on a difference between de jure and de facto segregation. Kennedy finds specific problems with both the Kentucky and Seattle systems but seems to be leaving the door open to the use of race or something like race as a factor in future remedial programs, but with some kind of inscrutable Kennedy burden that is not easily discerned and may not be possible to meet....
The only other thing I'd flag following my first hasty reading here is Justice John Paul Stevens' brief dissenting opinion. He's been pulling out all the stops of late in relying on his own life history to illustrate how out-of-touch he believes this conservative majority to be. And to see the language and logic of Brown upended in service of this holding is nothing short of a "cruel irony." ...
Maybe that kind of commentary isn't all that doctrinally relevant, but it goes to one of the central themes of the dissenters this term: Can "the law" really be so different today than it was two years ago just because the composition of the court has changed?
Ms Lithwick seems to focus on some of the same passages and issues that jumped out at me, from a similar perspective. In law, originality isn't everything.
Of course, it does beg certain questions to note that rapid changes in the law are highly associated with changes in Court personnel. To be sure, there are politics in the air (and everywhere else--we swim in it), but that observation can, of course, run in either direction. It doesn't establish which politics, or which majority, is to be preferred (dare one suggest, "right").
What the discussion does suggest, however, is that our pretenses of living by "the rule of law" rest on very uncertain foundations. I suppose I'm more of an old time legal realist than a crit, but that has been changing since Bush v. Gore. (Like Digby, I can't "get over it"--this week we are experiencing the full significance of the prior 5-judge majority's usurpation of our very imperfect democracy.) I had tended to believe that the myth of a rule of law was probably a good thing for the society (for example, that "Constitutional rights" were something "real"). It's now pretty obvious that the myth didn't fool the current Administration and its minions (there were more than ten of them), which went about their business with little regard for anything that might be termed "law".
So, for the moment, it's all politics, and what passes for law is a cruel formalism in the service of the interests of the powerful.
How does one continue to teach law in such a time?
(A reprise of a question from December of 2000.)
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