Friday, June 29, 2007

School Desegregation Cases - Prognostication: One for Three

With the Court's decision yesterday in the school desegregation cases (Meredith v. Jefferson County Bd. of Educ. (Louisville) and Parents Involved in Community Schools v. Seattle School Dist. No.1) , I'm one for three in my September 2006 guesses for which way the Court would decide in three key cases in the just-concluded 2006-07 term. (The others were the Philip Morris USA v. Williams decision handed down in February (predicted correctly) and the Gonzales v. Carhart decision handed down in April (predicted incorrectly).)

An average of .333 is pretty good in baseball, but not so good in prognosticating, I'm afraid. In these two later cases I wrongly-guessed the Court would respect the doctrine of stare decisis (adhering to precedent), whereas instead the newly-branded conservative majority overcame precedent that would seem to have suggested another outcome. This is surprising (or maybe not), in light of Chief Justice Roberts' and Justice Alito's pledges during their confirmation hearings to respect stare decisis, and in light of the fact that "judicial activism" of this sort is anathema to judicial conservatives (at least in theory).

The Justices' willingness to overcome precedent so easily and so quickly is troubling (and don't be fooled by the majority's position that this latest Parents Involved in Community Schools decision is mandated by Brown v. Board of Education - it's not (more later on this)). Don't get me wrong - I don't object to the Court overturning earlier decisions when they've been wrongly-decided, despite stare decisis. But to do so while loudly proclaiming a judicial philosophy where judges should not be "active," and should move cautiously and incrementally in addressing changes to binding precedent, is simply... hypocritical.

On the horizon: abortion. Even after the confirmations of Roberts and Alito, and as recently as a few months ago, I'd been confident that the underlying principle of Roe v. Wade - i.e., a woman has an individual right to choose to have an early-stage abortion free of government interference - would not be overcome. That confidence was based on a belief of Roberts' and Alito's (supposed) firm commitment to the credo of the (supposed) judicial conservative to respect stare decisis. After their performance this term, I'm not so sure - that firm commitment is looking more and more like nothing more than lip service all the time, and Roe is in the cross-hairs.