Reading the school integration case.

I've put off writing about the school integration cases that came out on Thursday, in part because I was writing under the pressure of deadlines on both Thursday and Friday, but also because I genuinely wanted to read the opinions and was not eager to express an instant opinion either to condemn or to praise what the Court did.

Back when cert. was granted, I called attention to the idea of deferring to local educational policymakers, which the Court did in Grutter, the University of Michigan Law School case where the Court approved of the use of race as a factor when the goal is classroom diversity.

So if I had one predisposition, it was that I hate to see community resources absorbed in litigation, and I would prefer to leave the results of local decisionmaking in place. That is, I find federalism and judicial restraint appealing. But, of course, I have a second predisposition: I want integration to succeed, and I hate to see a Supreme Court case that people will read as hostile to it.

I know the Court writes on top a large pile of difficult precedent, and I'm not going to use this blog post to try to sort through all of that and make a pronouncement about which opinion did the best job of sorting through it.

I will simply quote the passage that I found most persuasive, from Justice Breyer's dissenting opinion:

What has happened to ... respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.

These are values of federalism and judicial restraint, conservative values, which are especially worthy of respect when they they are not used to preserve or drag us back to our racist past.

IN THE COMMENTS: Many of my readers object to what I've said here, and I will respond to a few of them. Seven Machos writes:

I really don't understand your argument at all, Althouse. The Topeka Board of Education did plenty of local decisionmaking. The Court stepped in and said that certain decisions cannot be made. What's the difference here. You can argue with the policy issues, but you can't make a federalism argument here. The federal government can either... prevent unconstitutional practices or it can't.

You're assuming the practice in question is unconstitutional. That is the matter to be decided in the case. Justice Breyer is not saying what happened here is unconstitutional, but I can't (or won't) do anything about it. For him, considerations of federalism and judicial restraint affect the analysis of whether there is a right. Taking these and other concerns into account, he finds no right violated in this case. Brown v. Board of Education involved a very different set of facts. The Court has a difficult task in defining the scope of Equal Protection, it is not obvious where to draw the line, and it is appropriate for the Court to be aware that once it says that a right exists it is denying people the freedom to make choices in a democratic fashion and that it is diverting their time and money into litigation.

Beldar writes:

"What has happened to ... respect for democratic local decisionmaking by States and school boards?"

This was, of course, the exact argument used to justify racial segregation whose purpose was to benefit whites and harm blacks.

Chief Justice Roberts has it exactly right, and it's so profoundly simple that even a lawyer like me or a con law professor like you ought to get it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

You are asserting that the simplest formulation of legal doctrine must be the correct one and implying that anyone who disagrees with that assertion is failing to understand something simple (and is, presumably, either an idiot or is playing dumb). In your view of the law, there can be no subtlety, no careful weighing? Are you willing to apply that proposition across the whole range of legal issues? Think it through. If courts could only proceed in that fashion, I think we would end up with fewer, not more rights.

From the other side, AJD said:

Oh, come on. Nothing about the man you've fawned over all year? The smiling C.J who is harkening us back to that racist past.

But weren't his prose great! Don't you love his sentences!!

There are limits to how long a blog post can be and I chose not to parse through all the opinions in this case, but in fact I don't think there is anything racist about the Chief Justice's opinion. He drew the line and defined the right in the way he saw fit, and he wrote a solid opinion explaining the decision. What I wrote in this post does not imply that he is taking us back to our racist past, only that he could have given more deference to the choice of a local majority because that democratic choice was not infected by racial animus.

And my support for the Roberts nomination had nothing to do with his good looks but with his learning and his powers of analysis. In fact, clear, elegant writing is a sign of the clear, strong thinking we want in a judge. And judges need to prove to us in writing that they are doing their job properly. Unlike you, I am able to respect and appreciate the work of judges who come to conclusions that I myself would not reach.

Blue.

Fragile.

Mickey Mouse-ish character martyred....

The show with a terrorist mouse got canceled, and Hamas TV provided the children with closure by having Farfour beaten to death.

ADDED: The video.

Did Mitt Romney torture his dog?

This cruelty to animals story has legs... and a tail... and loose bowels.... This is the clearest example ever of smearing a candidate with shit. You know the story. Romney transported his dog in some sort of container that was affixed to the top of his station wagon, and the dog got diarrhea that the family became aware of when one of the kids saw it dribbling down the window.

“If you wouldn’t strap your child to the roof of your car, you have no business doing that to the family dog! I don’t know who would find that acceptable,” [said PETA President Ingrid Newkirk]....

While PETA doesn’t take a position on any candidate, Ingrid offered up the theory that Mitt may have “what neurologists call an ‘absence of the mirror neuron,’ a physiological condition in the brain which means they cannot feel basic compassion.”

Isn't it quite standard to plant the idea that Republicans lack feeling? I was just reading this review of a biography of Condoleezza Rice ("Twice as Good: Condoleezza Rice and Her Path to Power," by Marcus Mabry). The reviewer, Jonathan Freedland, tells us the reader feels "oddly estranged" from Rice, not through any fault of the author's, but because of the "chilly steel he finds" in her heart:

His search for vulnerabilities or doubt reveals only a cold, unwavering self-discipline. One of the book’s most telling moments comes when the 17-year-old Rice realizes, after surrendering her childhood to the goal of becoming a concert pianist, that she is not, after all, good enough. Her teacher ruled that while “technically competent ... she was too detached emotionally to be a great pianist.” She needed “disciplined abandon”: she had the discipline all right, she just couldn’t let herself go. Yet even this major blow barely troubles her. She simply decides to pursue another goal....

The former arms inspector David Kay calls her the worst national security adviser since the office was created, and the verdict seems harsh but not wholly unwarranted.

Rice’s defense would rest on her extraordinary presentational skills, her fluency and poise under inquisitorial fire. So what if she is more a synthesizer of others’ ideas than an original thinker, runs this logic; she has a sure political touch. Except even that is in doubt. Caught shopping for shoes in New York as the corpses floated in New Orleans after Hurricane Katrina, Rice explained that “I didn’t think about my role as a visible African-American national figure. I just didn’t think about it.” Given what we know of her upbringing, that isn’t psychologically surprising — but it showed a political tin ear.

So heartless and cold, these Republicans... who will, of course, take every opportunity to say that Democrats are so mushily sentimental they can't even think.

UPDATE: From Ann Romney's blog:

Surprise, surprise, the media didn't get the dog story right. Our dog Seamus rode in an ENCLOSED kennel, not in the open air. And he loved it. Every time he saw it, he jumped up on the tailgate, walked in, and lay down. It was just like the kennel he curled up in at home.

The dog wasn't in an exposed cage.

ANOTHER UPDATE: Is this wrong?

"Died ... after a long and remarkably courageous struggle with cancer..."

I feel sorry for the man who died and sympathetic to his family, so I won't name him here. I only want to comment on the phrase quoted above.

Old Onion headline:

Loved Ones Recall Local Man's Cowardly Battle With Cancer

Sample text:

According to [Russ Kunkel's] personal physician, Dr. James Wohlpert, the type of cancer Russ had generally takes at least four months to advance to the terminal stage. But because of what he described as a "remarkable lack of fighting spirit," the disease consumed him in less than one.

"It's rare that you see someone give up that quickly and completely," Wohlpert said. "Cancer is a powerful disease, but most people can at the very least delay the spread of it by maintaining a positive outlook and mental attitude. This, however, was not the case with Russ.

Cancer inflicts terrible suffering. But you don't step forward to endure it in place of others. It happens, and you do what you can. Is one victim really more "courageous" than another? What does it mean to be "remarkably courageous"? What unnamed persons are you implying were courageous, but actually significantly less courageous than the newly departed? And does anyone ever not get credit for courage? We're bound to the script: cancer, therefore courage. There's never a Russ Kunkel.

I think you know why. It's why you laugh so much when you read about Russ. It's because we -- if we don't already have terminal cancer -- have so much anxiety about the prospect of becoming the next victim. We're comparing the dead one, who behaved like everyone else under the circumstances, with the vision of ourselves discovering that is our fate.

Friday pop quiz.

What Velvet Underground song mentions Wisconsin?

"Thank God" the Piccadilly bombing was averted.

Chris Matthews kept talking like that. Is it right? Mark Daniels, a Christian minister, asks. I've been listening to the audiobook of Christopher Hitchens reading his new book "God Is Not Great: Religion Poisons Everything," and, seeing Mark's question, I could almost hear Hitchen's sneering about how fatuous Matthews' exclamation is. But it looks like Mark and Christopher are on the same page here.

Seriously, if you credit God for stopping one attack, you're implicitly blaming Him for not stopping another, aren't you?

CORRECTION: I had "how fatuous the question is." Didn't mean that. [And "Good" for "God." Sorry. It's been a hard day. Or is God toying with me?]

ADDED: In the comments, I'm told that Mark comes around to accepting Matthews' exclamation. I guess I fell asleep during the sermon. Speaking of falling asleep, last night I had a dream about Hitchens. Someone I know had published something saying his argument that God does not exist was based entirely on the evil that human beings have done in His name and Hitchens was giving him an earful about what actually was in the book.

Want.

Getting?

MORE: Wait?

Who's more likely to enter the race: Gore or Thompson? Gore!

That's what I get out of reading John Hinderaker at Power Line today.

1. re Gore: "Gore had canceled all his scheduled events in the next six months," according to the Taipei Times.

2. re Fred Thompson: "The Fred Thompson campaign recently set up an event for 60 of Congress's most solid conservatives. Many of them were hoping to be able to endorse Thompson. Unfortunately, Thompson did not impress the Congressmen. He did not appear to be ready for a tough Presidential campaign. One of his aides explained that Thompson was 'rusty,' which, as one Congressman told me, did not inspire much confidence in this YouTube era. Some of those who attended are now looking at Mitt Romney as the most viable conservative in the race."

"Rusty." Great word. What does it connote? Lazy/dumb? Or just not in the mood? Or is John Hinderaker trying to tip us toward Romney? This business about "confidence in this YouTube era" seems to say: Don't worry about slick. We need slick. Slick is good.

As for Gore, what do you make of that? Someone check to see if he's on a diet. If so, he's running. And I say, welcome! Gore is a worthy entrant in the race.

UPDATE: Now, Power Line is saying that the Gore story from Taiwan is a fake. The link goes here:

I just contacted Al Gore's office and was told the following about the article.

It is completely and utterly false.

1. He never accepted an event in Taiwan
2. We have loads of events on the schedule in the next six months

I don?t know how to spell bubkus but there?s no credibility to this whatsoever.

Hmmm... so is that the end of it, or is there something suspicious about the denial? "Completely and utterly" is awfully strong. I was thinking maybe "never accepted" left some room for a tentative plan that was then abandoned, and maybe "loads of events on the schedule" means... oh, I give up!

If you want to be a photographer in NYC, you'd better be a loner.

Because unless you're alone, you'll need a license and $1 million in insurance to take pictures for more than a half hour in a single public location if this idiotic proposal goes through.

Get that cucumber away from that tomato.

Says al Qaeda.

Purple or banana-like.

Two orchids. Which one do you prefer?





That says so much about you.

Me, I have a strong preference. I suppose it's easy to tell.

"I think you reserve impeachment for grave, grave breeches, and intentional breeches of the president's authority."

USA Today transcribes the remarks of Barack Obama.

Let's try to understand what this means. We've got to wait until the next election unless... unless what? George Bush deliberately puts on some incredibly serious pants?

"Where’s the Fairness Doctrine when you really need it?"

Asks Boston Herald columnist Howie Carr as he lashes into John Kerry for wanting to resurrect the loathsome "Fairness Doctrine":

How come no one outside Massachusetts ever heard about the “16-point buck” he claimed to have had between the crosshairs on the Cape? How about how he claimed to have run the Boston Marathon but couldn’t recall the year?

What about the condo flipping? What about the Bob Brest Buick? Or the fact that George Bush actually got higher grades at Yale than Kerry? What about all his free rides on the Florida S&L bandido’s private jet back in the early ’90s., pre-Mama T? How come most voters still don’t know any of these stories?

Carr's point is a familiar one: liberals bitch about right-wing radio but never acknowledge the liberal bias of mainstream media, especially NPR. But, oh, how he goes after Kerry. Delicious!

Now, Kerry's whiny nonsense provoked a satisfyingly quick smackdown as the House voted 309-115 for a bill that would keep the FCC from doing what it hasn't even made a move to do. We did have some commentators waggling their fingers and saying things like: "Unless broadcasters take steps to voluntarily balance their programming, they can expect a return of fairness rules if Democrats keep control of Congress and win the White House next year." That was threatening enough.

Looking for a link for the House vote, I started with a search in the NYT, which, it turns out, has written nothing about the recent talk about the Fairness Doctrine.

In fact, the NYT hasn't mentioned the Fairness Doctrine since November 2004, where it appeared, appropriately enough, in an obituary (TimesSelect link):

The Rev. Billy James Hargis, a fiery evangelist and anticommunist preacher who founded the Christian Crusade and reached millions in an international ministry that used radio, television, books, pamphlets and personal appearances, died on Saturday at a nursing home in Tulsa, Okla. He was 79....

At the height of his popularity in the 1960's and 1970's, Mr. Hargis -- a shouting, arm-waving, 270-pound elemental force whom Oklahomans called a ''bawl and jump'' preacher -- broadcast sermons daily or weekly on 500 radio stations and 250 television stations, mainly in the South, and in other countries. He traveled almost constantly to deliver his Christian and anticommunist messages, wrote 100 books and thousands of articles and pamphlets, and published a monthly newspaper....

Another case produced a landmark court decision and sharply cut Mr. Hargis's broadcasting empire. He was accused by Fred J. Cook, a journalist, of unfairly maligning him in a radio broadcast. Mr. Cook sought free air time to reply under the Federal Communications Commission's fairness doctrine. A radio station in Red Lion, Pa., sued, saying its First Amendment rights would be violated. But the Supreme Court in 1969 upheld the constitutionality of the fairness doctrine, and many stations thereafter were less inclined to broadcast controversial programs.

Here's the old Red Lion case for your non-edification. I was going to quote something from it, but there's no inspiring dissenting opinion, and it's a rather dull tract by Justice White, resting heavily on the scarcity of the airwaves and the need for the government to regulate (to avert cacophony).

Mellow. Shiny.

Satiny.

Am I supposed to comment on the sick symbiotic relationship between...

... John Edwards (desperately needs a new way to drum up cash) and Ann Coulter (has a book coming out just now in paperback)?

Here's what I'm not talking about.

MORE: TRex -- who mocks Coulter for incoherent raving by incoherently raving about drug use -- seems delirious with glee that to announce that Coulter's book ("Godless") declined #85 to #98 on Amazon’s Top 100 Non-fiction Politics top sellers list at one point yesterday. But today, it's #25. Unfortunately, kicking up a storm on TV actually does sell books.

YET MORE: "Coulter's Words Help Edwards Raise Cash."