Supreme Court tilt to right had its limits
The 2006-2007 term was dominated by notable conservative rulings.
from the July 2, 2007 edition
Page 4 of 4
A 'Kennedy doctrine' for schools
It is in the school race cases handed down Thursday that Kennedy's power as a moderating force is on full display.
Roberts wrote the majority decision invalidating race-based public school enrollment programs in Seattle and Louisville, Ky. Both plans violate the Constitution's equal-protection clause by using race to decide which students would attend the most popular schools, the court ruled. The chief justice's opinion lays a legal foundation to require officials to adopt a color-blind approach in instances other than attempts to remedy intentional discrimination.
Had Kennedy provided an unreserved fifth vote, the resulting decision would have become a constitutional landmark, in effect opening a new and controversial chapter in race relations in the US.
But he stopped short of authorizing that sweeping outcome. Instead, Kennedy provided the crucial fifth vote to strike down the two school programs but then wrote a controlling concurrence that limits the sweep of the Roberts plurality opinion.
The resulting Kennedy doctrine is that school districts may use race to try to avoid the racial isolation of minority students in inner-city schools or to achieve a diverse student body. But they can do so as a last resort only after exhausting nonrace-based means of achieving such goals.
Kennedy didn't always swing to the right in major cases this term.
His most significant move to the left came in a case involving an attempt to force the US Environmental Protection Agency to regulate greenhouse gases to fight global warming. It represents a victory for states and environmentalists worried about the impact of climate change, and makes it easier to file future suits. But the holding itself does not force the EPA to do anything other than take a more rigorous look at the problem and carefully justify any agency inaction.
Six high-profile cases of the term
1. Parents Involved in Community Schools v. Seattle School District No. 1, and Meredith v. Jefferson County Board of Education – Decided June 28 by a 5-to-4 vote. Struck down race-based enrollment plans at public schools in Seattle and Louisville, Ky.
2. Gonzales v. Carhart, and Gonzales v. Planned Parenthood – Decided April 18 by a 5-to-4 vote. Upheld a federal ban on so-called partial-birth abortions.
3. Federal Election Commission v. Wisconsin Right to Life, Inc., and McCain v. Wisconsin Right to Life, Inc. Decided June 25 by a 5-to-4 vote. Endorsed a narrow reading of the McCain-Feingold campaign-finance law as applied to corporations and unions seeking to run issue advertisements prior to an election.
4. Hein v. Freedom From Religion Foundation – Decided June 25 by a 5-to-4 vote. Declared taxpayers do not have legal standing to challenge alleged violations of the separation of church and state by the White House absent a direct appropriation for religious purposes by Congress.
5. Morse v. Frederick – Decided June 25 by a 5-to-4 vote. Ruled that school officials may censor student speech at school-sponsored events when that speech is seen as promoting illegal drug use.
6. Massachusetts v. Environmental Protection Agency – Decided April 2 by a 5-to-4 vote. Ruled that states have legal standing to sue the EPA to force the agency to undertake a more rigorous effort to examine whether greenhouse gases should be regulated to fight global warming.
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