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Question: Where is the Supreme Court Today?

Laurence Tribe: It’s clear that beginning with the Rehnquist years, and now much more clearly during the Roberts era, the idea of the Court as a significant lens through which to see possibilities of greater justice, and of making significant strides, is over.  And I think one has to think in terms of the uses of the law to achieve greater social justice more often of avoiding the court than of seeking to use it as part of an engine of conceptual and constitutional progress.  Progress is going to have to be made at the ground level in communities.  It’s going to have to be made at the state and federal legislative levels in terms of international activity.  And the court is now moving into a phase of not only passivity – vis-a-vie the kinds of progress that I was happy to see the Warren court and even the Berger court making in decisions like Roe v. Wade under Warren Berger – but it’s moving into a period of active hostility to certain kinds of anti-discrimination measures.  I mean it’s in some ways tragic and in other ways ironic to see a court say to the cities of Louisville and Seattle, who are taking race into account in making people assignments at the margin in order to send the kid to a different school, and make the racial integration of the schools a little better, and make the school somewhat more reflective of the demography of the area.  It’s just tragic to watch the court look at that and say in all candor, in all honesty . . .  Chief Justice Roberts looks at that and he says in his plurality opinion for the court, “This is no better than racial segregation.”  What was going on in Topeka, Kansas when Brown v. Board came on was kids were being put in schools based on their race.  Same thing here.  No difference.  Well how blind can you be?  I mean one is the subordination of a racial minority by law.  The other is disappointing a few kids by not giving them their first choice school – not an experience they’re going to have over and over and over again, grinding them into the dust in order to get a more integrated and diverse society.  How can one see those as equivalent?  And yet we have four members of the current Supreme Court who do.  And that means that certain kinds of progress that one makes at the ground level in that Seattle school board or in the Louisville school board are going to come up against a formalistic view of the law which equates racial segregation and subordination by law with the affirmative consideration of race, and which therefore strikes that down.  Well as it happens one Justice, Kennedy – for whom I testified when he was nominated – took a position which agreed in result with Roberts and with the other four conservatives; but did not . . .  Or I should say Roberts and the other three strong conservatives and he provided a fifth . . . which did not close the door completely to considering race in order to achieve greater integration. He left it open a slight crack.  And so I do tend to see the sunlight around the edge of the cloud rather than only the cloud.  I think that crack can be exploited.  But we’re still moving in a very rightward direction in the law and I find that disappointing.  When I look at my grandchildren – I’ve got a wonderful granddaughter who’s three and a half and a little grandson who seems to be quite wonderful at the age of four months – rather than thinking, you know, it’s too bad they’re growing up into a world in which the kinds of dramatic progress that one can see in Brown v. Board are not being made; instead of thinking that I think, “Isn’t the world lucky to have these two little kids who are going to some day move it back again?”  I mean I do believe the pendulum will swing, and that the law will in the long run be a greater instrument for justice than oppression.  The fact that I won’t see it in my own lifetime only means that there are some pleasures I’m going to be denied.  But I’m confident that in the long run, in the hands of people who are now very young, things are going to be a lot better.


Laurence Tribe on the Supre...

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