The Supreme Court is not a particularly conservative court. It rules against businesses more than the lower federal courts do, and its rulings have overturned thousands of criminal sentences, as I have explained at length elsewhere. (Click here for that article.)
But to some left-wing reporters, it will always be a conservative court, simply because it does not issue liberal decisions all the time. To make them happy, the Supreme Court must not only issue liberal rulings, but it must also disregard any limits in those rulings in future cases, in order to stretch them as far as possible for ideological ends. Refusing to go to this extreme they define as “conservative.”
Slate’s Dahlia Lithwick and Barry Friedman recently made the ludicrous claim that the Supreme Court was guilty of “chutzpah” and ignoring its past decision in “the University of Michigan affirmative action cases” when it struck down the Seattle School District’s racial-balancing policy in 2007. The Seattle Schools’ unconstitutional policy restricted students of certain races from attending their preferred school, in order to ensure that the racial balance of each school was similar to the school system as a whole.
Their argument is contradicted by the very decision they cite, the “University of Michigan cases,” which held that that racial balancing is unconstitutional. In the University of Michigan cases, the Supreme Court struck down the University’s undergraduate admissions system, finding that it engaged in racial balancing, i.e., a racial quota, in Gratz v. Bollinger, 539 U.S. 244 (2003). But it upheld that university’s law-school admissions policy, which did not appear to use race in a mechanical way. Even as it upheld the law school’s affirmative-action policy, however, it emphatically stated that “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003). In doing so, the Supreme Court recognized its consistent teaching that “racial balance is not to be achieved for its own sake.” (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992).)
The Seattle schools did just what the University of Michigan affirmative-action cases said was unconstitutional — they deliberately used racial balancing to keep the racial breakdown in each school as close as possible to the racial breakdown in the school system as a whole. See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
(That’s even before we get to the fact that the University of Michigan cases only allowed race to be used in the university context based on institutional “academic freedom,” a higher-education notion that does not generally apply to K-12 schools like Seattle — meaning they logically could not use race even under circumstances permitted at the University of Michigan. Moreover, the University of Michigan cases refused to allow institutions to use race in a mechanical way — such as assigning a particular weight to race and other factors — which is another thing the Seattle Schools unconstitutionally did.)
Left-wing journalists like Lithwick apparently think that the Supreme court should have ignored the many prior Supreme Court decisions over the last 30 years limiting the use of race (like the Croson, Bakke, Gratz, Wygant, Adarand, Miller v. Johnson and Shaw v. Hunt decisions) while expanding on the few decisions upholding the use of race. But it’s not clear why. Respect for precedent doesn’t logically apply to only the most extreme or “liberal” decisions, nor does it logically permit many Supreme Court decisions to be ignored just in order to expand the reach of the few — especially when doing so contradicts language found even in those few that are purportedly being followed. (The Grutter decision upholding affirmative action at the University of Michigan’s law school was perceived as liberal, and in a public-opinion poll by Rasmussen, most people disagreed with the decision. Michigan voters ultimately outlawed affirmative action in state college admissions and state contracts in response to the Supreme Court’s decision.)
The Seattle Schools didn’t just use race in student assignment. They also made bizarre racial claims, such as saying that “individualism” is a form of “cultural racism,” and that planning ahead (“future time orientation”) is a white characteristic that it is racist to expect minorities to exhibit. These claims were brought to the Supreme Court’s attention in the amicus brief of the Competitive Enterprise Institute, which I wrote. (As a result, these claims were cited by the Justices in their ruling striking down the Seattle Schools’ use of race, both in Chief Justice Roberts’ opinion, and in Justice Clarence Thomas’ concurring opinion.)