Friday, June 29, 2007

Thomas v. Breyer...The Smackdown

Cadged from AnkleBiting Pundits. This is good stuff:

Regardless of what JUSTICE BREYER’s goals might be, this Court does not sit to “create a society that includes all Americans or to solve the problems of troubled inner city schooling”. Ibid. We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it.

It should escape no one that behind JUSTICE BREYER’s veil of judicial modesty hides an inflated role for the Federal Judiciary. The dissent’s approach confers on judges the power to say what sorts of discrimination are benign and which are invidious. Having made that determination (based on no objective measure that I can detect), a judge following the dissents approach will set the level of scrutiny to achieve the desired result. Only then must the judge defer to a democratic majority.

- JUSTICE BREYER’s good intentions, which I do not doubt, have the shelf life of JUSTICE BREYER’s tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as JUSTICE BREYER”s. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (”If men were angels, no government would be necessary”). Indeed, the racial theories endorsed by the Seattle school board should cause the dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race.

This is overdue, to say the least.