Sunday, July 15, 2007

Supreme Court Chief Justice: Unpopular Even With Other Conservatives Now

This is an about-face, or at least unexpected. (But not underreported. For instance, see my own brilliant summation of the relevant case here.)

Signing onto a Roberts decision that helps gut the McCain-Feingold campaign finance law, Scalia scolded the chief justice [John Roberts] for effectively overturning an earlier ruling without owning up to it. "This faux judicial restraint is judicial obfuscation," Scalia protested.

Nowhere does Scalia's critique of Roberts's style apply more forcefully than with regard to the Court's recent ruling in Parents Involved v. Seattle. Roberts's plurality opinion in the high-profile desegregation case elbows aside some 50 years of precedent while affecting a posture of doe-eyed innocence. If the phrase "What, little ole me?" doesn't appear anywhere in the text, that's only because it wasn't necessary. It is implied in practically every word.


At heart, Roberts's opinion is an assault on Brown v. Board of Education, the landmark 1954 desegregation case, masquerading as an attempt to redeem it. Under its mainstream interpretation, Brown required school boards to actively integrate themselves, rather than merely abolish rules that prevented black students from attending white schools. In Roberts's view, however, the problem with the pre-Brown regime wasn't racial isolation per se, merely that "schoolchildren were told where they could and could not go to school based on the color of their skin." To appreciate how significant a reinterpretation this is, ask yourself the following: If, post-Brown, a school board in Alabama had ended formal segregation while nonetheless preventing black students from attending white schools--say, by barring children from predominantly black neighborhoods from enrolling--would the Court have been satisfied? Of course not. (In fact, the Court more or less said as much in 1968, after Southern segregationists pursued a variation on this strategy.) But such efforts would have been consistent with Roberts's reading of the decision.

I doubt this means Scalia is going to start a whispering campaign about Roberts' taste in womens' clothes, but you don't see something like this every day on the Supreme Court from supposed political and ideological allies.


Blogger nolo said...

Excellent post, and fascinating TNR editorial.

10:14 AM  

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