Commentary: The impact of fervent dissent
on Jun 28, 2007 at 2:27 pm
Commentary
If Justice Anthony M. Kennedy is to hold the one vote that counts as the Supreme Court continues the decades — perhaps centuries — of struggle with the role of race in American law, and that seems beyond any shred of doubt after Thursday’s ruling in the Seattle and Louisville cases, it is significant that the liberal-to-moderate wing of the Court will go on trying to coax or shame him into remaining more or less in the middle. The post on this blog by colleague Tom Goldstein analyzing Kennedy’s concurrence Thursday makes clear why his declarations are controlling, and why race is still not a totally forbidden factor in public education policymaking.
What Kennedy’s opinion does not openly admit, but what Kennedy’s view of his role has long made clear, is that he is deeply sensitive to the way his work as a judge is and will be perceived in history. This is not true only in the work of the Court on race questions, but on other social or cultural issues as well.
While his own quite conservative instincts must make it enormously tempting, now that there are four rigorously conservative colleagues, to join them routinely, the pull of reputation and public image appears to have told him to hesitate. He is even less tempted, of course, to join routinely in the more robust liberalism of his other four colleagues. Both help explain why he is so determinedly the middle Justice — a position that is especially vivid at the conclusion of the just-completed Term.
What was fully on display on Thursday, amid a great deal of courtroom drama and soaring rhetoric, was the contest that is going on within the Court to influence Kennedy and his vote. And, in that contest, it can be argued that the Court’s liberal bloc — although it seems increasingly isolated on some of the bigger decisions — is having a substantial effect on reinforcing Kennedy’s instinct to keep staking out the middle. The sharp critique of the dissents plays into another facet of Kennedy’s self-perception.
He has a fundamental distaste for the heroic and simplistic constitutional dogma — so popular with two and perhaps more of his conservative colleagues — that leaves everyone to fend for themselves in decidedly uneven political or legal combat. He regularly seeks to put on display a large — perhaps even a grand — perception of the law that leads some unsympathetic observers to regard him as a puffed-up thespian using the Court and other public forums as a personal stage. And one of his grandest perceptions is that, if possible, the law should be made inclusive and should remain sensitive in human terms. (There is no doubt that Kennedy would regard even his much-criticized romanticizing of the relationship of mother and unborn child in the abortion ruling this Term as exhibiting just that kind of sensitivity, just as he probably also saw his often-maligned opinions in the past on gay sexual relations and on prayers at school graduations.)
The school cases are a clear example. His vote was necessary to control the outcome, and it very likely is true that the fervor of the dissent helped keep him away from a full embrace of the principal opinion by the Chief Justice. Indeed, while the dissents are blistering in their denunciation of the Roberts opinion, Kennedy’s criticism of it was likely to have a sharper sting. It provided a separation from Roberts’ more sweeping declarations against racial diversity as a valid public school goal, and left those declarations without the profound importance they would have had if they had in fact represented the views of a Court.
“The plurality opinion,” Kennedy said of some of the Roberts approach, “is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto segregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.”
The plurality, he says at another point, “does not acknowledge that the school districts have identified a compelling interest here.” That, he said, was why he would not sign on to the part of the principal opinion that ruled out the pursuit of racial diversity as an educational policy goal. “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue,” he went on. He even persuaded a laundry list of “race-conscious” policies that school districts could validly adopt in that pursuit.
And Kennedy shunned entirely the sentiment of conservative colleagues that the Court should insist and that the Constitution commands that public officials must be “color-blind.” He said: “In the real world, it is regrettable to say, it cannot be a universal constitutional principle.”
To emphasize his departure from the Roberts plurality on key points, Kennedy took the highly unusual step of discussing his concurrence in remarks on the bench. While it has become more common for dissenting Justices to recite from their opinions, it hardly ever happens that a concurring Justice does so.
Would Kennedy have worked so energetically to carve out a separate position had the colleagues in dissent moderated their critique? Perhaps he would have. But it is at least equally plausible that he did not wish to be lumped together with the plurality as a target of the dissents’ most aggressive thrusts of rhetoric. The dissent, it should be noted, is only mildly critical of Kennedy’s specific suggestions of alternative race-related policies that might be used, and that made even more vivid the far stronger language leveled at the Roberts coalition. That the dissent was not lightly to be dismissed is also evident in the efforts that the Chief Justice made to answer it, and, even more, the 36-page opinion Justice Clarence Thomas wrote with the sole aim of fending off the dissenters’ arguments.
