Writing for the plurality in Parents Involved v Seattle School District (http://www.law.cornell.edu/supct/pdf/05-908P.ZO) (2007), Chief Justice Roberts wrote (citation omitted):


Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.


From a New York Times article (Sotomayor Reflects on First Years on Court (http://www.nytimes.com/2011/02/01/us/politics/01sotomayor.html)):


On the other hand, she said she disagreed with Chief Justice Roberts’s approach to cases concerning racial equality. In a 2007 opinion in a decision limiting the use of race to achieve public school integration, Chief Justice Roberts wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

That approach, Justice Sotomayor said, was “too simple.”

“I don’t borrow Chief Justice Roberts’s description of what colorblindness is,” she said. “Our society is too complex to use that kind of analysis.”

What say you? Who's more right?

Is Chief Justice Roberts right and it's just that simple - the way to stop discrimination on the basis of race is to stop discriminating on the basis of race?

Or, is Justice Sotomayor right and CJ Roberts is being naive in this regard - reality is a bit more complicated, his witty dismissal of that complicated reality notwithstanding?

He is right, she is a patronizing elitist.

He is right,
has anyone even seen her birth certificate?

He is right,
has anyone even seen her birth certificate?

Sodajerk wasn't appointed by Obama for her vast knowledge and the history of her great decisions.

She was appointed because she is a far left tool.

This is key;

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

“I don’t borrow Chief Justice Roberts’s description of what colorblindness is,” she said. “Our society is too complex to use that kind of analysis.”

So, she borrows from Orwell, then? War is peace? Up is down? Right is wrong? Sounds stupid to me. Not complex.

:tap:

Of course Roberts is right. Typical liberal, taking something simple and making it seem to be something complex.

He is right,
has anyone even seen her birth certificate?

:lol: I haven't, but I'd lay odds that someone has.

At any rate, I don't think there's a Constitutional requirement that Supreme Court Justices be born in any particular place (e.g. the United States). Perhaps there's a statutory one, but I doubt it.

He is right, she is a patronizing elitist.

What she said.

He is right,
has anyone even seen her birth certificate?
When you are hatched you don't get one.

So, what's the response to Justice Breyer's response (http://www.law.cornell.edu/supct/pdf/05-908P.ZD1) to the Chief Justice's words (citations omitted)?

As I have pointed out, de facto resegregation is on the rise. It is reasonable to conclude that such resegregation can create serious educational, social, and civic problems. Given the conditions in which school boards work to set policy, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges.

I use the words "may need" here deliberately. The plurality, or at least those who follow JUSTICE THOMAS' "color-blind" approach, may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nations children and how best to administer America's schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality's slogan, whether the best "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria.

Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of "race-conscious" criteria from among their available options. Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America's efforts to create, out of its diversity, one Nation.

Well of course she means that race should be taken into consideration, only when it benefits the race du jour. That what she means by "complicated." That to be actually 'colorblind" would hamper all of the efforts of ridiculous social programs who seek to help or benefit only one race or group.

Being "race conscious" sounds an awful lot like "discriminating."

Breyer's response allows for this "discrimination" because it can be a helpful tool that law shouldn't dictate that they don't use.. Fine. But who's to say some district in rednecklandusa won't decide that segregation will be helpful for it's students..with a totally different aim? There are school disctricts deciding to segregate, and it is seen an "OK" because it purports to benefit the minority students. But you can't tell one district it is ok for them to be "race conscious" to help their minority students, and tell another they cannot be "race conscious" to benefit their "majority" students. If we can stomach that as a result, then fine..let it be at their "disposal."

So, what's the response to Justice Breyer's response (http://www.law.cornell.edu/supct/pdf/05-908P.ZD1) to the Chief Justice's words (citations omitted)?

As I have pointed out, de facto resegregation is on the rise. It is reasonable to conclude that such resegregation can create serious educational, social, and civic problems. Given the conditions in which school boards work to set policy, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges.

This yet another example of the differences between socialists on the left and republicans, small r, on the right; What Breyer is after here, clearly, is equality of outcome, not equality of opportunity.

Resegregation??? How so? Is he mad?

What he is responding to is FREE WILL and FREEDOM of association having the audacity of not corresponding to his preconceived notions of specific outcome.

Segregation was the enforced separation by the people in charge based on given prejudice. That has been REMEDIED. Resegregation is NOT, repeat, NOT the reinsitution of segregation by those in power. It is the CHOICE of those with their own power.

Silliness reigns supreme.

But who's to say some district in rednecklandusa won't decide that segregation will be helpful for it's students..with a totally different aim?

Who indeed. When you pose a hypothetical in a debate or to illustrate a point..isn't it also true that the hypothetical posed must present something that has at least a tiny degree of 'real possiblity' associated with it?

Put another way, I could hypothesize that the city council of Topeka, Kansas could ban the practicing of the Muslim religion within city boundaries...and so therefore, clearly we need a law restraining the city council from doing that.

The matter of discrimination is a binary problem. Either it exists or it doesn't.

A binary problem is settled best with a binary solution. You either allow it, or you don't.

Well of course she means that race should be taken into consideration, only when it benefits the race du jour. That what she means by "complicated." That to be actually 'colorblind" would hamper all of the efforts of ridiculous social programs who seek to help or benefit only one race or group.

Being "race conscious" sounds an awful lot like "discriminating."

Breyer's response allows for this "discrimination" because it can be a helpful tool that law shouldn't dictate that they don't use.. Fine. But who's to say some district in rednecklandusa won't decide that segregation will be helpful for it's students..with a totally different aim? There are school disctricts deciding to segregate, and it is seen an "OK" because it purports to benefit the minority students. But you can't tell one district it is ok for them to be "race conscious" to help their minority students, and tell another they cannot be "race conscious" to benefit their "majority" students. If we can stomach that as a result, then fine..let it be at their "disposal."

Channeling Justice Breyer (albeit in an oversimplified way that doesn't do the argument sufficient justice): Diversity is an inherently societally beneficial quality, whereas the lack of diversity is not. Likewise, diversity is consistent not only with the promise of our Nation, but with the spirit of the Fourteenth Amendment's Equal Protection Clause, whereas the lack of diversity is consistent with neither. It is for this reason that the one exemplary instance of government discrimination is Constitutionally allowable while the the other exemplary instance is not, just as surely as the Equal Protection Clause permits - if it be the will of the people - some race-conscious policies even while categorically forbidding invidious racial discrimination.

This yet another example of the differences between socialists on the left and republicans, small r, on the right; What Breyer is after here, clearly, is equality of outcome, not equality of opportunity.

Resegregation??? How so? Is he mad?

What he is responding to is FREE WILL and FREEDOM of association having the audacity of not corresponding to his preconceived notions of specific outcome.

Segregation was the enforced separation by the people in charge based on given prejudice. That has been REMEDIED. Resegregation is NOT, repeat, NOT the reinsitution of segregation by those in power. It is the CHOICE of those with their own power.

Silliness reigns supreme.

Channeling Justice Breyer (albeit with poor tone replication): Is not the Constitution, first and foremost, a document meant to honor the will of the people while setting modest and necessary limits on that will? In that light, should the people not be allowed to decide that a lack of diversity - even if it be the result of natural processes rather than created by intentional government policy - is an undesirable quality? Having decided that, shouldn't those people be allowed to choose modest race-conscious policies meant to increase diversity. Does a Constitutional provision meant to curtail invidious discrimination at the hands of governments require that the people, acting through those governments, should lose basic tools that might meaningfully help them to implement goals that are wholly beneficial to society? Surely the Constitutional knife that our forefathers left us is not so dully crafted that it requires the carving out of those options in furtherance of racial fairness in the very name of racial fairness.

Channeling Justice Breyer (albeit with poor tone replication): [I]Is not the Constitution, first and foremost, a document meant to honor the will of the people while setting modest and necessary limits on that will?

How about a little slavery, just for diversity's sake? Maybe a few limits here and there on women voting, if only for some diversity from them all being able to vote? For that matter, how about we extract a little more revenue, maybe a lot more, specifically from white European descent males? Just because? Maybe we let some gays, maybe those of race, to serve openly and, for diversities sake, others maybe not so much?

Why is it that, amongst speech, guns, privacy, we can tolerate all sorts of little violations here and there yet, in some areas, there are to be ABSOLUTE rights?

One of the things I enjoy about Roberts and Scalia and Thomas, when you get to hear them in conversation outside the robes, they make sense. They take a point, an issue, and move through it. Ginsburg and Beyer really seem to have little regard for logic yet seem to want to think they make sense. Kennedy and Stephens seem a good bit more comfortable basically saying justice isn't consistent, neither shall I be. Haven't heard Alito much.

Writing for the plurality in Parents Involved v Seattle School District (http://www.law.cornell.edu/supct/pdf/05-908P.ZO) (2007), Chief Justice Roberts wrote (citation omitted):



From a New York Times article (Sotomayor Reflects on First Years on Court (http://www.nytimes.com/2011/02/01/us/politics/01sotomayor.html)):



What say you? Who's more right?

Is Chief Justice Roberts right and it's just that simple - the way to stop discrimination on the basis of race is to stop discriminating on the basis of race?

Or, is Justice Sotomayor right and CJ Roberts is being naive in this regard - reality is a bit more complicated, his witty dismissal of that complicated reality notwithstanding?

I read about 8 pages of the opinion (then when I woke up) I read about 2 paragraphs of the OP ED. My take away from the descision was that race was not the only factor taken into consideration, siblings and proximity were factors as well. So, as with all things in life, it is a little more complicated than it initially seems.

It sounded to me like the schools, especially the Seattle schools, were not imposing some huge burden on the parents or kids. I didn't get to the description of the program of the other school

Maybe the answer is somewhere in the middle.

Of course Roberts is right. Typical liberal, taking something simple and making it seem to be something complex.

Exactly. It's simple. Take away all guns, and there won't be gun violence. Everything's so simple.

:dye:

Exactly. It's simple. Take away all guns, and there won't be gun violence. Everything's so simple.

:

OK then. Explain the simple method that will be employed to take away all guns. I'm all ears.

OK then. Explain the simple method that will be employed to take away all guns. I'm all ears.

That was subtle sarcasm.

Maybe if the government stopped trying to provide entitlement programs then 80% of this discussion would be mute.

Exactly. It's simple. Take away all guns, and there won't be gun violence. Everything's so simple.

:dye:

Or eliminate gun restrictions completely and make the laws associated with the actions, not the gun ownership that is simply protected by the 2nd amendment.

You justification for taking away guns is equal to taking away cars. How many deaths are caused by people using their car in a way these were not meant to be used. I can cite at least under the influence of drug accidents that have killed people in Calvert over the past couple of years.

How about a little slavery, just for diversity's sake? Maybe a few limits here and there on women voting, if only for some diversity from them all being able to vote? For that matter, how about we extract a little more revenue, maybe a lot more, specifically from white European descent males? Just because? Maybe we let some gays, maybe those of race, to serve openly and, for diversities sake, others maybe not so much?

Why is it that, amongst speech, guns, privacy, we can tolerate all sorts of little violations here and there yet, in some areas, there are to be ABSOLUTE rights?

One of the things I enjoy about Roberts and Scalia and Thomas, when you get to hear them in conversation outside the robes, they make sense. They take a point, an issue, and move through it. Ginsburg and Beyer really seem to have little regard for logic yet seem to want to think they make sense. Kennedy and Stephens seem a good bit more comfortable basically saying justice isn't consistent, neither shall I be. Haven't heard Alito much.

None of them are acceptably consistent, though some are better than others (e.g. Thomas), without regard to their respective ideological tendencies. If you read enough from any of them, you see where they're willing to twist their logic in subservience to ideologically-preferred outcomes. Such is the case with human nature.

But, back to the roleplaying: Don't you believe in judicial restraint (read: the lack of judicial activism)? We may disagree about whether these race-conscious decisions seeking diversity are good or bad - but shouldn't WE THE PEOPLE have the right to make them, so long as they aren't in clear violation of the Constitution? And, in so far as that goes - don't you believe that it is the original intent of the Constitution that matters? Do you believe that it was the intent of the drafters of the 14th Amendment's Equal Protection Clause to put up roadblocks to racial integration and equal opportunity, or was it merely their intent to put up roadblocks to racial oppression?

That was subtle sarcasm.

Subtle?

(I got you, the actual subtle sarcasm was saying that the original sarcasm was subtle. :lol:)

But, back to the roleplaying: Don't you believe in judicial restraint (read: the lack of judicial activism)? We may disagree about whether these race-conscious decisions seeking diversity are good or bad - but shouldn't WE THE PEOPLE have the right to make them, so long as they aren't in clear violation of the Constitution? And, in so far as that goes - don't you believe that it is the original intent of the Constitution that matters? Do you believe that it was the intent of the drafters of the 14th Amendment's Equal Protection Clause to put up roadblocks to racial integration and equal opportunity, or was it merely their intent to put up roadblocks to racial oppression?

You ask several very interesting things, here;

Belief (or not) in judicial restraint.

Right to pass laws that aren't in clear violation

Original intent

Those three concepts form a very nice, collective triumvirate of checks and balances. Excellent symmetry there, my man, on several levels.

Restraint; A belief in judicial restraint, to me, needs to be considered in context of the law being considered. To me, the function of the court is to say yes or no on a given law, is constitutional or, is not. So, staying on topic, approving Obamacare is, to me, a clear act of judicial activism, finding a brand new federal right to require individuals to buy a product or service. Disapproving it is, to me, judicial restraint in saying the federal government can't do that. We find no such right in the constitution. Go back and try again.

Obviously, if one is for Obamacare, you go to whatever lengths to claim the opposite, a ruling in favor is restraint, opposed is activist. You may have made the point and I simply missed it but, where else has the federal government succeeded, passed constitutional muster, on such a requirement? This one could not be clearer in my mind to be a finding of a new federal power and, thus, absent an amendment, unconstitutional.

Right to pass diversity or, 'good intentions' laws; Like the title, good intentions laws? Is that a good description to clarify we are on the same page with your point? If so, the answer is, like any other law, sure, we have the right to pass them. And then, the court has the constitutional obligation, the duty, to then reject them because there is NO constitutional federal power to do such things.

I think the single best, cheapest, most effective thing we could do as a people is to REQUIRE individuals to floss their freaking teeth every night. It would be minimally invasive other than the armed guard in your bathroom verifying compliance and the cost, other than the armed guards, would be cheap. Maybe we simply enlist dentists to report on us every six months? We would ALL be better off, clearly, improving health and saving 100's of billions a year. And creating mass unemployment in the health/industrial complex. Of course, they could all go to work in the dental floss mines and shut up about it.

Original Intent; Now, there is one side of the coin. The other side is the amendment process. When you want to do something you think is a swell idea, serving the interests of the nation in uber swell fashions yet you can't git 'r done constitutionally, then you have recourse; if it's such a great freaking idea, pass an amendment.

An Obamacare fan would argue that is the same as never getting it done. An opponent would say that's because it isn't a good enough idea. And THAT is the beginning and ending of original intent, in my view. I find in no way, shape or form where the founders every even suggested "This is a perfect document!" Far, far from it. They clearly, in my mind, said, 'Hey 2011, this is the best we could do. Y'all figure it out and make it better as you see fit in your day. We just strongly recommend you do so in a fashion that is satisfactory and agreed to by 2 out of 3 people. We think that is a reasonable proportion of support to make big changes. Oh, and if you don't like that, change that, too. Just do it in a fashion that follows the existing rules. That's why we put 'em in there. You can do whatever you like. Just protect the rules because they are the only thing that protects the individual from the federal gummint. Have a nice day! And stay out of Southeast Asia. And George says floss your freaking teeth."

So, in my mind, the three concepts are elegantly tied together; restraint on overstepping from judicial into legislative while legislative has the power over judicial if it is actually the will of the people and there is the executive having his immense power of the ideas and wishes of one person balanced by legislators who must be cajoled and courts that must approve.

:buddies:

You ask several very interesting things, here;

Belief (or not) in judicial restraint.

Right to pass laws that aren't in clear violation

Original intent

Those three concepts form a very nice, collective triumvirate of checks and balances. Excellent symmetry there, my man, on several levels.

Restraint; A belief in judicial restraint, to me, needs to be considered in context of the law being considered. To me, the function of the court is to say yes or no on a given law, is constitutional or, is not. So, staying on topic, approving Obamacare is, to me, a clear act of judicial activism, finding a brand new federal right to require individuals to buy a product or service. Disapproving it is, to me, judicial restraint in saying the federal government can't do that. We find no such right in the constitution. Go back and try again.

Obviously, if one is for Obamacare, you go to whatever lengths to claim the opposite, a ruling in favor is restraint, opposed is activist. You may have made the point and I simply missed it but, where else has the federal government succeeded, passed constitutional muster, on such a requirement? This one could not be clearer in my mind to be a finding of a new federal power and, thus, absent an amendment, unconstitutional.

Right to pass diversity or, 'good intentions' laws; Like the title, good intentions laws? Is that a good description to clarify we are on the same page with your point? If so, the answer is, like any other law, sure, we have the right to pass them. And then, the court has the constitutional obligation, the duty, to then reject them because there is NO constitutional federal power to do such things.

I think the single best, cheapest, most effective thing we could do as a people is to REQUIRE individuals to floss their freaking teeth every night. It would be minimally invasive other than the armed guard in your bathroom verifying compliance and the cost, other than the armed guards, would be cheap. Maybe we simply enlist dentists to report on us every six months? We would ALL be better off, clearly, improving health and saving 100's of billions a year. And creating mass unemployment in the health/industrial complex. Of course, they could all go to work in the dental floss mines and shut up about it.

Original Intent; Now, there is one side of the coin. The other side is the amendment process. When you want to do something you think is a swell idea, serving the interests of the nation in uber swell fashions yet you can't git 'r done constitutionally, then you have recourse; if it's such a great freaking idea, pass an amendment.

An Obamacare fan would argue that is the same as never getting it done. An opponent would say that's because it isn't a good enough idea. And THAT is the beginning and ending of original intent, in my view. I find in no way, shape or form where the founders every even suggested "This is a perfect document!" Far, far from it. They clearly, in my mind, said, 'Hey 2011, this is the best we could do. Y'all figure it out and make it better as you see fit in your day. We just strongly recommend you do so in a fashion that is satisfactory and agreed to by 2 out of 3 people. We think that is a reasonable proportion of support to make big changes. Oh, and if you don't like that, change that, too. Just do it in a fashion that follows the existing rules. That's why we put 'em in there. You can do whatever you like. Just protect the rules because they are the only thing that protects the individual from the federal gummint. Have a nice day! And stay out of Southeast Asia. And George says floss your freaking teeth."

So, in my mind, the three concepts are elegantly tied together; restraint on overstepping from judicial into legislative while legislative has the power over judicial if it is actually the will of the people and there is the executive having his immense power of the ideas and wishes of one person balanced by legislators who must be cajoled and courts that must approve.

:buddies:

So you like judicial restraint, but you only talk about in terms of Obamacare not the race cases. Breyer is deferring to the ELECTED school boards. He is upholding their action. Overturning their action, is overturning the action of elected officials.

School boards and schooling is done at the state and municipal level. We are not talking about the judges striking down action taken by Congress. The tenth amendment reserves power to the state and that implicitly includes the right to create an educational system. Now perhaps the action in the case violates the 14th amendment equal protection clause--but the state clearly has the power to regulate its educational system

So you like judicial restraint, but you only talk about in terms of Obamacare not the race cases.

I only did that to stay on topic and avoid writing a book. Let's talk about the school board issue;

Breyer is deferring to the ELECTED school boards. He is upholding their action. Overturning their action, is overturning the action of elected officials.

School boards and schooling is done at the state and municipal level. We are not talking about the judges striking down action taken by Congress. The tenth amendment reserves power to the state and that implicitly includes the right to create an educational system. Now perhaps the action in the case violates the 14th amendment equal protection clause--but the state clearly has the power to regulate its educational system

Link me up so I can get the gist.

:buddies:

These quotes are from Tilted's post where he quoted Justice Breyer.

"Given the conditions in which school boards work to set policy, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges.

By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nations children and how best to administer America's schools to achieve that aim. The Court should leave them to their work."

Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nations children and how best to administer America's schools to achieve that aim. The Court should leave them to their work."

A system which provides for checks and balances when democracy, the power of the majority, has gone too far. That check is the courts. It is NOT making policy by saying "You can't do that."

If there were any case to be made that our policies of using discrimination to eliminate or even minimize the proposed problems it would still be, in my view, unconstitutional. You don't institute slavery of the old master to make up for what the slave suffered.

That our discriminatory polices have not, repeat, have not, alleviated or repaired the 'problems' only makes everything worse. Have some benefited and come up from where they may have otherwise been? Maybe. But only if you assume nothing else would have been done to address the problems. What has happened is the lower of standards for others to have some raising of standards for others. That is vulgar at best and criminal at worst.

Much has been written and discussed about schooling problems over the years. One clear cut argument has been that desegregation policies have simply been used as the path to doing SOMETHING by diluting the problems on the lower end and creating new ones on the other. In short, desegregation has been nothing more than a way to not address the actual problems. :buddies:

A system which provides for checks and balances when democracy, the power of the majority, has gone too far. That check is the courts. It is NOT making policy by saying "You can't do that."

I have no problem with that in a general sense.

If there were any case to be made that our policies of using discrimination to eliminate or even minimize the proposed problems it would still be, in my view, unconstitutional. You don't institute slavery of the old master to make up for what the slave suffered.

What are the school boards doing that is unconstitutional in being race conscious when forming school policy? Is what they are doing really equivalent to slavery?

That our discriminatory polices have not, repeat, have not, alleviated or repaired the 'problems' only makes everything worse. Have some benefited and come up from where they may have otherwise been? Maybe. But only if you assume nothing else would have been done to address the problems. What has happened is the lower of standards for others to have some raising of standards for others. That is vulgar at best and criminal at worst.

I don't think Breyer is arguing against that. At least in that one specific quote, he says I don't know if these policies are working or whether they are creating more trouble, but I believe the courts should defer to the elected officials on this one. Whether the specific policies are working are not is an interesting debate and no doubt there are a lot of negative consequences, but should a court really consider those policy implications.