The Los Angeles Times is confused about the purpose of the Supreme Court. In an editorial published on Monday, Guilty of Confusion, the Times asserted that the role of the Supreme Court is to provide "legal and ethical leadership to a divided nation." While the Court does interpret the law, determining its legitimacy against the Constitution, they do so not to provide leadership but as a check to those in rightful seats of leadership. (remember 'checks & balances' in high school social studies?). If anyone is confused, it is the editorial board of the Los Angeles Times.
It is the President and Congress that provide national leadership in this country. The role of the Supreme Court is to check the power of this Leviathian: Congress' power to enact laws and levy taxes and the President's power to enforce those laws [Constitution, Art. I, Sec. 8; Art. II, Sec. 2 respectively].
I have been frustrated by the reaction to the school race case. Talk of Brown v. Board of Education being overturned? Is Justice Breyer kidding? The apocalyptic reactions from the usual cadre of race-baiter's is to be assumed. The mainstream angle has been to discuss the court in is conservative turn but not the actual law in question. While this tactic is good for ratings it muddles the real issue facing the court and society in this case: Is it lawful to use well-intentioned racial discrimination to bring about a perceived social good? (I say 'perceived social good' because commentators seem universally decided that 'Diversity' is an unqualified social good but I have never heard anyone actually argue for this.)
It does not seem like it is lawful. Who can refute the clear logic in Roberts simple statement: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Brown v Board of Education, to the dismay of liberals was not a call to an integrated society but a prohibition of state-sponsored segregation based singularly on race. The distinction here is between outlawing segregation and enforcing desegregation. The principle it upheld was nondiscrimination -- which would often (but not always) lead to racial integration. Making 'Whites Only' lunch counters illegal doesn't entail mandated ratios of blacks and whites for the same establishment. Law scholars and social activists took the Brown ruling and ran with it, conflagrating it into a government mandate for eradicating discrimination in all forms, except when those methods are used for their own purposes. The crux of the problem with the state-sponsored segregated schools in the 1960s is the same as it is in Louisville, Kentucky and Seattle, Washington now, that the state is using race to decide public policy, not how it was using it.
For someone who sees the Supreme Court as the fluid arbitrator of social good (as if Congress didn't even exist), the Court's ruling is disastrous and rightfully a cause for alarm. However, if one views the role of the Supreme Court to arbitrate disagreements over what laws actually say as compared to what the Constitution actually says, then they are encouraged by last weeks ruling and the health of the Republic overall.
Whatever the goods school diversity programs seek to accomplish, it is not enough to revert to state-sponsored racist methods tasked to accomplish them. Benign intentions have consistently been the unwitting cause for terrible social evil. Are not the goals of Diversity programs to teach children to see one another as individuals, created equals, instead of divisive categories based on race or ethnicity? How hypocritical is it to set up a program to teach colorblindness when the process for choosing the participants hinges on the color of their skin?
Update: See Protein Wisdom's take on this ruling...
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