June 29, 2007 at 10:44:53

Race(ing) Backwards With Boost From SCOTUS

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By Rowan Wolf (about the author) Page 2 of 3 page(s)

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The 5-4 decision by the Roberts court reversed the decisions of two appellate courts. It has also virtually reversed Brown vs the Board of Education -one of the most important court decisions impacting racial equality in the United States.

One might wonder what happened to both Roberts' and Alito's highly touted respect for stare decisis - legal precedent (see end notes). Justice Breyer issued a stinging rebuke which is pertinent and hopefully not prophetic: "It is not often in the law that so few have so quickly changed so much." In regard to the importance of precedent, he stated: ""It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision.." This pretty much rules out any confusion over the context and intent of Brown v. Board of Education.

END NOTES
Supreme Court Cases involved: Tennessee Secondary School Athletic Association v. Brentwood Academy and Parents Involved in Community Schools v. Seattle School District No. 1 et al.

Voting in the majority: Alito, Kennedy, Roberts, Scalia, and Thomas.

Voting in the minority: Breyer, Ginsburg, Souter, and Stevens (NY Times

Text of the Court's opinion - Justice Breyer's dissent starts on page 109 of the 185 page opinion.

REGARDING stare decisis

From Day 2 of Roberts' Confirmation Hearing in response to a question regarding Roberts agreed with the importance of stare decisis:

ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, "To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."

So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.

AND

ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, "To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."

So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.

AND particularly for the current decision:

ROBERTS: Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions.

Those were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable, carried the day in those cases.

So it is clear that even at his confirmation hearing Roberts was aimed at "jolting the legal system" in relationship to Brown vs the Board of Education regardless of his support for stare decisis.

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Rowan Wolf is an activist and sociologist living in Oregon. She is the founder and principle author of Uncommon Thought Journal, and a Senior Editor for more...)

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