Supreme Court Jesters

In the last few weeks of their 2007 session, the Supreme Court seemed to have been on the legal version of a bender. Some of their decisions, and their comments on those decisions, have led me to wonder if they were hiding whiskey bottles under those long cloaks.

Exhibit A comes from none other than the chief justice himself, John Roberts. In a 5-4 ruling, the Supreme Court decided race could not be used as a factor in consideration for school placement. In siding with the majority, Roberts said:

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

Huh?

So that must mean that if we make illegal one of the few constructive uses of discrimination by race, people will stop the already illegal and rampant practice of destructive discrimination by race? If a white man is less likely to hire a black woman because of her color, disallowing voluntary school integration programs will cause the man suddenly to reconsider?

Justice Roberts, sometimes we must act, through laws or by voluntary programs, to ensure that we provide equal education to all students.

Before the law required desegregation, we had segregated schools – good schools for the white kids and bad schools for the black kids. Around the time that desegregation was enforced, many voluntary programs were instituted to help address racial imbalances. Some of these programs, like the Metco program in Massachusetts, are now decades old and have helped thousands of kids receive a better education, get into better colleges, and hold better jobs. The graduates of these programs often return to their communities as leaders and set positive examples for inner city youth. The suburban schools profit by having the otherwise all-white school population exposed to diversity. Without these programs, we risk returning our children to the damaging racial isolation prevalent before the late 1960’s.

School desegregation wasn’t the only major ruling recently where it seemed the Supreme Court’s reasoning was shaky at best. Another threw out a taxpayer lawsuit questioning funding of the “faith-based initiatives.“ The normally sensible Justice Kennedy, in siding with the majority to disallow the lawsuit, wrote that such suits would lead to:

“intrusive and unremitting judicial management of the way the executive branch performs its duties.”

What? Was my 7th grade social studies teacher wrong? She told us that the three branches of government create a checks and balances system and that the judicial branch serves to ensure that the actions of the other branches are legal and constitutional. When the executive branch creates a faith-based program without legislative approval, who else then can question its legality except for the courts? Who should rule on whether or not this violates the separation of church and state? The Surgeon General? Oh, I forgot, he’s already part of the executive branch and isn’t even allowed to mention that second-hand smoke is unhealthy.

Maybe the problem is that I just don’t understand the law or judges. Judges were once students who went to law school. I thought that they learned a lot about the law, took bar exams that tested their knowledge of the law, and then became lawyers―becoming judges later. Apparently, though, the bar exam is actually a test where you answer the questions you like and leave blank the ones you don’t.

Stephen Dunne did this while taking the Massachusetts bar exam recently. He didn’t like a question about gay marriage, said it was a "morally repugnant and patently offensive" question that violated his religious beliefs. The question itself so offended him that he left it blank and narrowly failed his bar exam as a result. He is suing the exam administration agency for $9.75 million. A small price to pay for his being offended, I guess. I wonder if he would have sued had he passed the bar exam...

Mr. Dunne has decided to represent himself in the lawsuit. With his convoluted thinking and inability to distinguish law from personal opinion and religious belief, how can he lose? All he has to do is take it all the way to the Supreme Court. They’ll be sure to vote in his favor.