The SCOTUS gets one Right

[lawrocket 3]

The SCOTUS reaffirmed that governmental actions with regard to race must meet the "strict scrutiny" test, meaning that a race-based system must be "narrowly tailored" to meet a "compelling governmental interest" by using the "least restictive means."

"Strict scrutiny" is applied whenever there is an infringement of a fundamental right, (i.e., a law that prohibits publication of anti-war materials) or whenever there is a law regarding a "suspect classification." By "suspect class" it means a law that applies to a class of people who are subject to discrimination. Laws that have race as a factor are treated with "strict scrutiny" because any classification based on race or national origin, etc., is suspect.

“Strict scrutiny” in this context is “[not] ‘strict in theory, but fatal in fact’” The Justice Breyer quoted that in his dissent because very few laws can survive "strict scrutiny." It is for this reason - because the dissent likes what these laws are trying to do, that they argue that a different standard should be used. In a very real sense, they aregue that "strict scrutiny" should be applied to laws that they don't like, but not to laws that they do.

I personally find it abhorrent to carve exceptions to a rule now that was first used in 1944.

Frankly, I had my doubts that this court would see it that way. See, this case revolves around school districts that rely on race to determine what schools students may attend. The school board basically said that they'll determine what schools kids can attend based on race.

To my ears, this sounds a lot like like, um, segregation. Recall that in the past, there were school districts that decided where kids would go to school based upon the race of the child. Brown v. Board of Education outlawed treating kids differently on the basis of race.

But the difference in this is that the school districts said that they are being anti-discriminatory discriminators. They are not discriminating against minorities. They are just granting preferential treatment to them in order to balance things out.

Now, this is not to say that the dissents didn't make some good points. Justice Stevens made an analogy to suggest his belief that it is unfair to treat anti-minority laws the same way as treating anti-majority laws:

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There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding para-graph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sen-tence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.

Now, this is a pretty pulling argument. Nevertheless, there is a reason why I don't buy it. "Equal protection" does not mean "the majestic equality of a law that forbids the rich from sleeping under bridges, begging in the streets or stealing their bread, but allowing the poor to do so."

Or a law, "preventing blacks from sleepign under bridges, begging in the streets or stealign their bread." Or a law, "Preventing only those in a majority group, pursuant to the last census, from sleeping under a bridge, begging in the street, or stealing bread."

Justice Breyer points to previous approval of race-based desegregation plans. But to me this case is different - when you've got places that have had a government actively segregating and holding down a race, then it seems abundantly clear that "affirmative action" must be taken by the government to put things back right.

In Seattle, there was NEVER a governmental law - or even an implied policy - of racial segregation. In fact, the only laws or policies that were racially based regarded preferences based upon race. The ONLY factor that Seattle looked to to find that there was a need for race-based rules of placement of children was the fact that minorities and whites tended to live around other minorities and whites. Because of this, schools tended to be largely minority or majority.

The dissenters think that where there's smoke, there's fire, and that the government HAS to be able to force minority and majority populations to integrate.

Because of this, the dissent argues that a separate standard should apply to benign or benevolent racism, which to me no doubt means preferences for minorities, penalties for majorities. "Strict scrutiny," it argues, should NOT be applied to race-based laws so long as minorities are the beneficiaries of preferential treatment.

Is "de facto" segregation the same as "de jure" segregation? Should the government be treated the same way in both cases?

I am honestly not in a position to say how forced desegregation can be done in a race-neutral way. I applaud governmentally forced desegregation in cases where the government has forced segregation. But I have not yet seen the argument that makes "preference of one race over another" better than "preference of one race over another."

My wife is hotter than your wife.

[FreeflyChile 0]

well, im glad that all the con law i've been studying for the last month hasn't been thrown to shit....

[lawrocket 3]

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well, im glad that all the con law i've been studying for the last month hasn't been thrown to shit....

You make an extremely important point! Many people can recall the Alito confirmations, where he was repeatedly asked whether he would apply precedents under stare decisis. Many of the Senators who were against his nomination proceeded to openly question whether his thinking was "mainstream" or whether he would overturn established judicial concepts.

Chile here has stated that from his recent and in depth study, had the SCOTUS ruled otherwise it would have "thrown to shit" much of what he has been studying.

THIS is why the SCOTUS got it right - because it followed established principles instead of carving out an exception based upon sociological concepts.

My wife is hotter than your wife.

[JohnnyD 0]

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

[brierebecca 0]

Well, this is my first post here in a while....

Honestly, I thought this was going to end up like the Bakke/Grutter split three years ago. The Louisville system looked a lot like the Bakke quotas - the school system had some percentage of kids who had to be a certain race in each school. So I thought that program would be similarly struck down because of the quotas. The Seattle system used a lot of factors as a tiebreaker to decide whether a kid would be sent to a certain school, including race. That looked a lot like Grutter, and with all of the diversity interest arguments floating around, I thought the SCOTUS would follow that precedent.

I agree about the strict scrutiny analysis being a tough precedent to overcome, and I think it's a little easier to figure out now, but I can't help but wonder what makes the diversity interest so much less important in grades K-12. They didn't even try to pretend it was a remedial case in Grutter, and the majority still sided with Bowlinger's administration because diversity IS a good idea, and it was a compelling interest sufficient to overcome strict scutiny then.

Of course, I don't know how the numbers looked, and I'm not sure if there were any waiver provisions or "critical mass" language in the Seattle program, which seemed to be important in Grutter.

However, I don't think I agree that the SCOTUS completely followed precedent here. The similarities with Bakke and Grutter seem marked, and I'm surprised they weren't followed.

Just my two cents.

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[FreeflyChile 0]

as always, far more eloquent than I, Rocket.

Yeah, that would have been a HUGE deal to change the standard on race stuff. The funny thing is that in bar-bri, they tell us that they dont test us on new cases and such, so in essence if an earth-shattering ruling were to come down, we'd still be tested on the outdated standard

[Royd 0]

I saw the lady who was the cause of this ruling, on Nightline last night.

The biggest point was that people are tired of either sending their kids across town, or having to drive them, when there's a school right around the corner.

There was also a black woman who had the same point of view.

It looks like another liberal social engineering experiment bites the dust. It's just sad that it took this long.

[rehmwa 2]

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It looks like another liberal social engineering experiment bites the dust.

Well meaning liberal social engineering experiments NEVER fail. People just fail to make the experiment work due to lack of enlightenment.

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Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[brierebecca 0]

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Yeah, that would have been a HUGE deal to change the standard on race stuff.

Well.....it wouldn't have been changing the standard if the SCOTUS had followed the Bakke/Grutter split, as I stated above. The diversity interest would just have been enough to meet the strict scrutiny standard like it was in Grutter.

And when I was taking Barbri in December, they gave us a handout of recent cases as a supplement to the bar prep course. And I was tested on it. So make sure you know your recent precedents for the Bar. Although if you just recently took con law, I take it you're not graduated yet.

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[Zipp0 1]

Hey..... whatever it takes to keep the nigs out of my kid's school is fine with me.

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Chuck Norris doesn't do push-ups, he pushes the Earth down.

[Royd 0]

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Hey..... whatever it takes to keep the nigs out of my kid's school is fine with me.

I believe that the point was, shipping kids twenty miles everyday for 12 yrs. doesn't give them a better eduacation, it's just an additional source of stress in an already busy world.

[FreeflyChile 0]

no im in barbri right now - i had the conlaw part of barbri not too long ago...

[brierebecca 0]

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no im in barbri right now - i had the conlaw part of barbri not too long ago...

Well, I would learn what's in your recent developments update. I was tested on mine.

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[Zipp0 1]

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Hey..... whatever it takes to keep the nigs out of my kid's school is fine with me.

I believe that the point was, shipping kids twenty miles everyday for 12 yrs. doesn't give them a better eduacation, it's just an additional source of stress in an already busy world.

Well, at least you knew I was being facetious.....

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Chuck Norris doesn't do push-ups, he pushes the Earth down.