Thursday Morning Supreme Court Round-Up

The Supreme Court issued its final three decisions of the term this morning, and pinched off a couple of steamy floaters in the process.

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Court struck down two voluntary public school integration plans as unconstitutional because they took race into account when deciding where to assign students. The judgment was 5-4, with an extremely unhelpful Kennedy concurrence controlling the outcome. Chief Justice Roberts, writing for the conservative plurality, apparently thinks that Brown v. Board of Education wasn't really about school integration. The Chief Justice also explained that the Civil War wasn't about slavery, vanilla ice cream would taste exactly the same without sugar or vanilla, and that whole "asteroid hitting the earth" thing in Armageddon was just a minor sub-plot. In response to critics who claim that Roberts is going back on his promise to be a moderate justice rather than a maniacal precedent slasher, Roberts explained that he never explicitly promised not to overturn Brown v. Board.

Justice Kennedy's concurrence agrees with the result but hems and haws about Roberts' reasoning, tossing around a bunch of equivocations and hypotheticals and suggesting that race-sensitive school assignment programs could be constitutional in a world that exists entirely inside Kennedy's own imagination. The most immediate results of this decision, apart from the invalidation of the two specific programs at issue, will be (1) lots more litigation about such programs elsewhere, with circuit court judges hither and yon having plenty of freedom to put their own respective stinks on the issue, and (2) additional significance placed on the Supreme Court during the 2008 presidential campaign. This issue is a lot more nuanced than quota-based affirmative action, and spin doctors will be able to get a great deal of mileage out of it going forward (I mean political consultants, not the 90s alternative rock band).

In the less sexy but comparably ominous decision of Leegin Creative Leather Products, Inc. v. PSKS, Inc., the same 5-4 split eliminated one of the last surviving per se rules in antitrust law. This means that antitrust law basically no longer exists in the United States. When reporters questioned the head of the DOJ's Antitrust Division about the future of his department in light of this ruling, he said, "I ain't done shit in years" and returned to an in-progress game of Minesweeper.

Finally, in Panetti v. Quarterman, a more palatable decision to my tastes, Justice Kennedy jumped the fence and joined the liberal justices in reversing the death sentence of a mentally ill inmate. The Court held that the Fifth Circuit (home of the Great State of Texas, where the motto is "Don't mess with Texas or we'll lethally inject you where you stand") applies too strict of a standard in determining whether a death row inmate understands what's going on regarding his own execution. Justice Thomas reiterated his position that the Eighth Amendment doesn't apply to lethal injection because chemistry hadn't been invented yet when the amendment was adopted. Justice Scalia, who often brings his shotgun to court, had to be restrained from shooting the defendant himself.

The Court is now in recess until October. I'll be keeping you up to date on any interesting summer media appearances by the justices. While I imagine that the press may be done with their John Roberts puff pieces, Justice Scalia is sure to embarrass himself and the Court at least once with some sort of flippant comment or obscene gesture. I'll keep my ears up.