The race-based school assignment cases — Justice Breyer’s dissent

Reader Mark Arnold writes:

Having had a chance to read the entire opinion, it’s obvious that, as usual, the media has this exactly backwards. There is an opinion in this case that is a radical, even revolutionary, departure from prior precedent. It’s Breyer’s dissent. Never before has the Court held that racial preferences for the sole purpose of producing a desired racial balance are permissible. The majority opinion in Grutter called that “patently unconstitutional.” The other truly revolutionary part of the dissent is the abandonment of strict scrutiny of racial classifications, by deferring to the school board on whether the evidence about the allegedly positive effects of racial balancing is sufficient to rise to a compelling state interest.

Mark also contends that, though Justice Stevens claims no member of the Court he joined in 1975 would have voted for the result in last week’s case, Stevens himself likely would have voted for that result back then. Mark reminds me that in 1978, Stevens wrote an opinion (signed by Burger, Rehnquist, and Stewart) dissenting from Justice Powell’s “middle ground” position in the Bakke case in which Powell endorsed some concept of a “diversity” rationale for race-based admissions by state colleges and universities.
Stevens rejected Powell’s approach because it went beyond what was needed to decide the case on statutory grounds under Title VI of the Civil Rights of 1964. However, Mark argues that the tone of Stevens’ opinion in Bakke is inconsistent with the tenor of his dissent last week. Indeed, Stevens quoted this statement by Hubert Humphrey: “if race is not a factor, we do not have to worry about discrimination because of race.” As Mark notes, that sure sounds like the Chief Justice’s comment in last week’s cases that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
JOHN adds: Identifying Mark only as a reader sells him a little short. He is an old friend of Paul’s and mine from our college debating days, and is now one of the country’s top appellate lawyers.


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