Bush leaves his mark – and it’s not Iraq

By
Wednesday, September 5, 2007

OXFORD – Predicting the judgment of history is no easy task. Even so, I wonder whether President Bush’s most lasting legacy will be the decisions rendered by the new conservative majority of his Supreme Court, rather than the debacle in Iraq.

Because Bush has now surpassed Jimmy Carter as the most disliked president in recent history, many wags sardonically conclude that Bush will have no legacy at all. However, even Bush’s most strident critics should concede his political deftness in appointing John Roberts and Samuel Alito to the Supreme Court. These appointments have enabled Bush to place his imprimatur on our nation’s highest court, even as the Democrats have become politically ascendant in Congress. The result is that the decisions of this Court may resonate in the United States long after even the bulk of our troops are withdrawn from Iraq.

A dramatic case in point is the Court’s recent opinion in Parents Involved in Community Schools v. Seattle School District et al.

At issue in this case was the legacy of Brown v. Board of Education, the seminal Supreme Court decision that empowered local authorities to desegregate public schools pursuant to the equal protection clause of the 14th Amendment.

Following the long-established precedent of Brown v. Board of Education and its companion cases, the lower courts ruled that public school districts in Seattle and Jefferson County, Ky., could lawfully allocate transfer students to their respective schools on the basis of race.

However, the Roberts Court, in a bitterly divided 5-to-4 opinion, declared these programs unconstitutional because they unequally favor one race at the expense of another. Indeed, Roberts argued in his majority opinion, “The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

By announcing the principle of a color-blind constitution, the Roberts Court largely overruled Brown v. Board of Education. In doing so, the Court’s decision directly questions the legality of hundreds of comparable school desegregation programs throughout the country. More broadly, it also makes it unclear whether and to what extent race can continue to be employed as a policy tool in social engineering.

Advocates of affirmative action may take solace in the concurring opinion of Justice Anthony Kennedy, which holds that race can be used as a factor in some circumstances. However, Kennedy arguably envisions a narrow exception, rather than a large loophole, to Roberts’ color-blind constitution.

As a result, the Court’s decision casts doubt on a number of race-based programs. For example, are programs predicated on creating racial diversity now constitutionally suspect? If so, what does that mean for the future of affirmative action in college admission? The far-ranging implications of the Court’s decision prompted an impassioned Justice Stephen Breyer to sharply criticize the majority decision by announcing, in open court, “It is not often in the law that so few have so quickly changed so much.” Justice John Paul Stevens, in his dissenting opinion, also declared that the majority has radically rewritten one of the Court’s “most important decisions.”

Though many Republicans applaud the concept of a color blind Constitution, the activist nature of the Court’s decision should be a source of grave concern to conservatives. Both Roberts and Alito came to the Court wearing the mantle of conservative jurisprudence that excoriates judicial activism. In fact, in their confirmation hearings, both affirmed respect for judicial precedent and deference to local lawmakers under the principles of federalism. Yet, in the Court’s decision, both unrepentantly rejected the precedent of Brown v. Board of Education just as they overturned decisions of local lawmakers that deserved greater deference under our federalist system.

The bitter irony for conservatives is that Roberts and Alito seem just as capable of judicial activism as their liberal counterparts. Consequently, the Court’s decision may be a Pyrrhic victory for conservatives; a battle won that loses the war properly fought against judicial activism. If so, Bush’s new majority on the Court may be a further disappointment to conservatives who once held so much promise in his now all but failed presidency.

Therein lies the possibility of yet another blow to Bush’s legacy, one that justifies enduring discontent among right thinking conservatives.

Former Herald Arts & Culture Editor Lindsey Meyers ’09 is currently studying at Oxford’s Lady Margaret Hall.