Tuesday, December 05, 2006

The Median Justice, Again.


Here is the opening sentence in Linda Greenhouse's article on the most recent Supreme Court arguments: "By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional."

There is nothing surprising in this outcome; indeed, the real surprise would be if the oral argument suggested a contrary outcome.

When a new Justice is appointed, the most important effect is usually not that Justice's positions on various issues, but rather whether the appointment changes the median Justice on the Court. In a multimember court, the Justice or Justices in the middle determine most of the hotly contested outcomes. Before this year, the median Justice was Sandra Day O'Connor. It is now Anthony Kennedy. Anthony Kennedy has opposed race-based policies in virtually every case since he became a Justice. Hence, unless a case before the Court is directly on point with cases in which the Court has upheld race-based policies (which is not very likely given the reason why the Court takes cases for review), it is very likely that Kennedy will vote to strike them down.

When Alito was nominated to the Court, I explained what I thought this meant. I predicted that the Court would probably come out differently on those issues where O'Connor and Kennedy were most likely to disagree. One of those issues is religion; Kennedy and O'Connor were on opposite sides in the Ten Commandments cases last Term. Another is affirmative action and related race-based integrative programs. A third is campaign finance regulation.

We are now seeing these effects in various cases before the Court. But the likely results could have been predicted long before. Anthony Kennedy may surprise everyone and vote to uphold one or more of these voluntary integration plans. But given his previous voting record on affirmative action and majority-minority voting districts, I wouldn't count on it.


I do not trust Kennedy to stay with his past views in all cases, although his questions concerning racially based student allocation appear to be consistent.

It will be interesting to see if Kennedy will stick to his dissenting position in favor of laws barring partial birth abortion.

Why do we assume that these school districts are using race to promote "integration," rather than engaging in rigid, mechanical, and unthinking racial quotas?

The Seattle Schools aren't interested in integration or promoting a melting pot.

In fact, the Seattle Schools publicly denounce "concepts such as a melting pot" on their web site, calling them a failure.

They have treated students as members of competing racial groups rather than individuals, claiming that "individualism" is a form of "cultural racism."

They have also engaged in offensive racial stereotyping, claiming that planning ahead ("future time orientation") is a white characteristic that it is racist to expect minorities to exhibit.

Moreover, the Seattle Schools are diverse even without using race, and no court has ever held them to be segregated.

There isn't any "integration" rationale here. It's using to race to promote racial stereotypes.

"When a new Justice is appointed, the most important effect is usually not that Justice's positions on various issues, but rather whether the appointment changes the median Justice on the Court."

As with the (fallacious, in my view) construct of the "median voter," this presumes that jurisprudence is linear (i.e., a one-dimensional spectrum), a debatable assertion at best.

I'd suggest that commentators listen carefully to Justice Kennedy's questions to the lawyer for the Kentucky school district before taking Linda Greenhouse's lead paragraph as gospel.

In an early comment in that argument, Justice Kennedy did make a statement, in a combative tone, that avoiding race as a criterion is a very important principle to him. But the school district's lawyer plodded on in a workmanlike manner, and by the end of the argument Kennedy was seriously asking what evidence of "narrow tailoring" the school district relied on.

It's like Romans reading entrails to predict a swing justice's vote from his comments at oral argument, and I may have read too much into Kennedy's questions. Even if he is persuadable in the Kentucky case he may not end up persuaded.

But I think Kennedy takes his responsibility as the tie-breaker very seriously, much more seriously than he did when O'Connor accepted that responsbility much of the time. And I think his questions in the Kentucky case showed that pretty clearly.

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