The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1 provides an interesting insight into the views of the justices on their roles in interpreting the Constitution. In his dissent, Justice Breyer noted “The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality’s approach, as measured against the Constitution’s objectives.” The plurality opinion, authored by Chief Justice Roberts, dismissed this approach: “Justice Breyer’s position comes down to a familiar claim: The end justifies the means.”
Justice Kennedy seems to adopt a more pragmatic approach. He decides that the goal of avoiding a racial imbalance is one that the schools can pursue, and recognizes that some consideration of race will be required to achieve that goal. He noted: “The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ ante, at 40-41, is not sufficient to decide these cases.” Justice Kennedy continued: “To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.”
While approving the goal, however, Justice Kennedy would limit the means available to the school districts to achieve that goal. In his view, school districts are “free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”
This divergence of judicial philosophy led Terry Eastland to note: “the debate among the justices in Parents Involved in Community Schools deserves to be taken to the campaign trail, and deserves to be discussed in terms of the kind of new justices who ought to be sitting–whether the next justice should be someone like Roberts or Thomas, say, or someone like Breyer. Kennedy, it is safe to assume, is not the sort of justice any candidate, of either party, is likely to suggest as a model.”