A few years ago, the Supreme Court announced that racial discrimination was OK in some forms of school admissions policy, despite the 14th amendment's flat prohibition of any such discrimination. Justice Sandra O'Connor came up with a bizarre interpretation that even included a timetable for phasing out the racial discrimination, though neither the discrimination nor the timetable had any Constitutional foundation whatsoever. Her attempts at judicial legislation are joined by those of Justice Ginsburg, who wonders if it is "safe" to get rid of racial discrimination while ignoring that it is Constitutionally required. Now O'Connor is gone, replaced by Samuel Alito, who has shown little tendencey to use the law to "improve" society in ways that he might think are nice. Alito clings to the antiquated view that it's the legislature's job to make law to improve society, not the court's. Should be interesting to see how these new cases come out... and whether the case from a few years ago, gets re-heard. Probably the best part of George W. Bush's checkered legacy, will be the appointment of two law-abiding judges to the Supreme Court, and many more such to lower courts. We are starting to feel the effects already. ------------------------------------- http://OpinionJournal.com from "Best of the Web Today" By JAMES TARANTO Dec. 5, 2006 How 'Integration' Became Discrimination http://www.nytimes.com/2006/12/05/w...00&partner=rssuserland&emc=rss&pagewanted=all The New York Times reports on an important case the Supreme Court heard yesterday: *** QUOTE *** By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional. There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court's new majority. In each system, students are offered a choice of schools but can be denied admission based on their race if enrolling at a particular school would upset the racial balance. At its most profound, the debate among the justices was over whether measures designed to maintain or achieve integration should be subjected to the same harsh scrutiny to which Brown v. Board of Education subjected the regime of official segregation. In the view of the conservative majority, the answer was yes. *** END QUOTE *** But liberal justices disagreed: *** QUOTE *** Justice Ruth Bader Ginsburg tried unsuccessfully to turn the chief justice's colloquy with [Seattle lawyer Michael] Madden in a different direction. The question of whether "using racial integration is the same as segregation," she said, was "pretty far from the kind of headlines that attended the Brown decision." Bringing "white and black children together on the same school bench," Justice Ginsburg continued, "seems to be worlds apart from saying we'll separate them." *** END QUOTE *** The fundamental dispute is whether antidiscrimination laws--the 14th Amendment and, by implication, the Civil Rights Act of 1964--ban discrimination altogether, or only in the pursuit of invidious ends. Broadly stated, the "conservative" position is that these laws protect individuals from discrimination, whereas the "liberal" position is that discrimination is fine in the pursuit of "diversity" or integration but not of white supremacy. Liberals, in other words, are much more apt to say that the ends justify the means. As Justice Harry Blackmun wrote in University of California v. Bakke http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=438&invol=265 , "In order to get beyond racism, we must first take account of race. . . . And in order to treat some persons equally, we must treat them differently." That was in 1978. Twenty-five years later, Justice Sandra Day O'Connor, in Grutter v. Bollinger http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-241 , upheld some racial discrimination in higher education, but wrote that she expects the need for them to have passed in another 25 years. Justice Ginsburg made a point of disagreeing, saying that one may only "hope" that it will be "safe to sunset affirmative action." There is a curious disconnect here. "Affirmative action" is politically unpopular, having been banned by initiative in three liberal states (California, Michigan and Washington). With Justice Samuel Alito having replaced O'Connor, its legal status is shaky.