The Roberts concurrence in Schuette v. BAMN

Chief Justice Roberts often seeks to build large majorities with narrow, conciliatory opinions. In some cases, however, the Chief Justice feels the need to write separately to challenge other justices and defend his own jurisprudence. In a brief concurrence in today’s Schuette v. BAMN decision, the Chief did both in a brief concurring opinion, challenging the thrust of Justice Sotomayor’s dissent and defending the Court’s decision in Parents Involved in Community Schools v. Seattle School Dist. No. 1, in which Chief Justice Roberts authored the plurality, but Justice Kennedy authored the controlling opinion.  This is not the first time the Chief has felt the need to defend his embrace of narrow opinions from those on his right — Justice Scalia in particular — and I doubt it will be the last.

As the opinion short, I’ve reproduced the opinion below.

The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding that it “do[es] not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court.” Post, at 57 (opinion of SOTOMAYOR, J.). The dissent concedes that the governing boards of the State’s various universities could have implemented a policy making it illegal to “discriminate against, or grant preferential treatment to,” any individual on the basis of race. See post, at 3, 34–35. On the dissent’s view, if the governing boards conclude that drawing racial distinctions in university admissions is undesirable or counterproductive, they are permissibly exercising their policymaking authority. But others who might reach the same conclusion are failing to take race seriously.

The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” Post, at 46. And it urges that “[r]acematters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Ibid. But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. Post, at 45. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. Post, at 46. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.[FN*]

FN* JUSTICE SCALIA and JUSTICE SOTOMAYOR question the relationship between Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), and Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007). See post, at 6, n. 2 (SCALIA, J., concurring in judgment); post, at 23, n. 9 (SOTOMAYOR, J., dissenting). The plurality today addresses that issue, explaining that the race-conscious action in Parents Involved was unconstitutional given the absence of a showing of prior de jure segregation. Parents Involved, supra, at 720–721 (majority opinion), 736 (plurality opinion); see ante, at 9. Today’s plurality notes that the Court in Seattle “assumed” the constitutionality of the busing remedy at issue there, “ ‘even absent a finding of prior de jure segregation.’ ” Ante, at 10 (quoting Seattle, supra, at 472,n. 15). The assumption on which Seattle proceeded did not constitute a finding sufficient to justify the race-conscious action in Parents Involved, though it is doubtless pertinent in analyzing Seattle. “As this Court held in Parents Involved, the [Seattle] school board’s purported remedialaction would not be permissible today absent a showing of de jure segregation,” but “we must understand Seattle as Seattle understood itself.” Ante, at 9–10 (emphasis added).

 

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

opinions

volokh-conspiracy

Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Comments
Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read National

opinions

volokh-conspiracy

Success! Check your inbox for details.

See all newsletters

Next Story
Jonathan H. Adler · April 22, 2014