Tuesday, June 30, 2009

Decision Reflects Court's Deep Division

Sonia Sotomayor, the New York appellate judge President Barack Obama has nominated to the Supreme Court, has credited her success in part to postwar America's efforts to correct centuries of racial discrimination.

If, as expected, her nomination is confirmed, the self-described "affirmative-action baby" will join a court divided on that very topic.

Chief Justice John Roberts came to the court with a deep-seated skepticism of race-conscious policies. In a number of cases his court has ruled, often 5-4, in favor of limiting the scope of civil-rights laws and practices devised to address racial discrimination.

"It is a sordid business, this divvying us up by race," Justice Roberts wrote in a 2006 concurring opinion rejecting a Voting Rights Act challenge to Texas' congressional redistricting.

No more sordid than racism.

"This is an area where there are sharply divergent intuitions about the role of race in American society, and sharply divergent views about what should be done about it," says Goodwin Liu, co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley.

Will she, as expected and predicted by so many pundits, be predictably liberal?

It also is possible that she could seek to hammer out a middle ground. Still, sometimes justices' views change, if subtly, over time. The chief justice himself has displayed a more moderate streak this term. Earlier this month, he wrote an opinion joined by seven other justices that left alive a bedrock provision of the Voting Rights Act of 1965.

Roberts moderating? What an interesting comment.

The Supreme Court's decision Monday in the New Haven firefighters' case highlights the justices' split. The four liberals would have upheld the city's decision to toss out test results that it worried were discriminatory. Justice Kennedy wrote the opinion.

A concurring opinion from Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, effectively accused New Haven's leadership of pandering to a local black political leader in throwing out the test results. Notably, Chief Justice Roberts didn't join that toughly worded opinion.

Well, it is all relative.

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