Everyone here we would like to do these things pretty quickly. The people are trying to figure out things that just happened at the Supreme Court, obviously sponsored by the Supreme Court Institute here at Georgetown our rapid response team. We have a couple of faculty members and a former faculty who I think we all still think of as on our faculty, Mark Tushnet. And I've asked them basically to talk about this term really focusing in particular on the school race case, the campaign finance case and other things during the course of the term. The Court managed to one up us this morning by 10:00 a.m. granting rehearing on the Guantanamo Bay military tribunal cases, I gather one of the first times they've granted rehearing in about 40 years or so. So it's pretty unusual. We're going to start out with Professor Schotland, then we'll go to Professor Tushnet and finally to Professor Vladeck. Roy. I just asked Mark when was the last dull Supreme Court term. It doesn't pop to mind. I'll be brief starting with two minor points and then less minor. The first minor point about the Wisconsin Right to Life campaign finance case is only to pin down a clarification that shouldn't be necessary but given the almost full page op ed in Wednesday's Wall Street Journal and George Will yesterday it does seem necessary. They both say Wisconsin Right to Life the plaintiff was a citizen's group. If that were accurate there would have been no case zero. Because the McConnell decision unanimously held, as the majority opinion put it, that the Congress did not intend to cover with the broadcast limits pure non-profits, what we call since 21 years ago Massachusetts Citizens for Life-type corporations. The reason we had a case here is that Wisconsin Right to Life is not just a citizen's group though it is that, but had gotten over $300,000 from corporate treasury funds, not from PACs. And was funding the ads in question with contributions of $50,000 each from corporate treasury funds. That's what made the case, so any time you think about it as a citizen's group dismiss that from your mind what's going on here is not only what's in McCain/Feingold provision but the broader question very important question of the extent to which if at all corporations and unions can be limited in their participation in campaigns. They are still limited in contributions whether that will continue I don't know but not now in spending. Second minor point is just for Supreme Court watchers. Several campaign finance experts on both sides of McCain/Feingold though all of them happen to be Democrats, have described Souter's dissent as tired. I would call it stuck record with major flaws. I'm struck that Walter Dellinger commenting on the new religion case called the Souter dissent half-hearted. I leave what to make of that to others. The Scalia concurrence in the campaign finance case in contrast is powerful as it's put in a one of only two must-reads, if you want to read anything about this case, that I will mention. One is a fourpager by the leading Democratic election lawyer Bob Bauer, an excellent analysis of the extent to which Scalia strengthens his side position for coming cases. My next to last point is the other must read. This is a posting on a web site called Politico by Martin Frost on Tuesday. Put aside the way in which he is making the point from a Democratic party point of view because, as he says, Mitch McConnell is the only person who agreed with him, he couldn't get any of his own party to agree. Let me just give you tiny bits. I almost never crow about a prediction, damn it, I told you so. I repeatedly told my House colleague that this McCain/Feingold bill was terrible and would have truly awful consequences when the Court got through it. I even tried to insert a non-severability clause. Shows the cleverness that's all you need, one punk provision and the whole thing goes out. Almost nobody would listen other than Mitch McConnell. This legislation that is McCain/Feingold treatment of soft money given to parties, this legislation neutered our two major political parties at the same time it permitted corporations and unions up until a window period before elections to finance issues ads. It was my position that the Court would strike down the limit before elections and that's exactly where we are. Thus, as, this is all Martin Frost, special interests now have a green light to attack federal candidates and the two major political parties are defenseless to come to the aid of their own candidates because they can no longer raise soft money, the exact type of funds that will be used by outside groups to launch these attacks. I think it's the best single statement I've seen. Now last, first of all just two or three little points, please get beyond the why it's all but overruling. That's camouflage. What is important here is how broad is the Roberts opinion. Broad not only with respect to what ads cannot be limited, broad also with respect to its deregulatory move about campaign finance regulation with his very simple, very strong enough is enough. And broad last in that it continues and even increases the recent years' tilt, strong tilt toward primacy of the First Amendment. I'll hit any other points if anybody wants to bring them up but I'm told there were some other cases this term. I thought I would start with some general comments on the major cases that we've seen recently and then turn to the what I call the school integration cases specifically. The sort of two over-arching comments about the term is what is striking is that the big cases are all cases that have two characteristics. One, there were cases involving revisits to issues in earlier cases that had been decided 5-4 with Justice O'Connor in the majority. And two, they were big cases, big, conservatives cared a lot about them so Stenberg v. Carhart I is revisited in Stenberg v. Carhart II. Grutter is revisited in the integration cases. McConnell, the first campaign finance case is revisited in Wisconsin Right to Life. So I wondered well you know so these are targets of opportunity right. What other things are there like that available. And I went to a couple of web sites that were maintained, one maintained by People for the American way at the time of the Roberts Alito nominations to get a list of they had key 5-4 rulings in which Sandra Day O'Connor was decisive. The only thing that is left is the endorsement test in symbolic support of religion, the creche cases and Ten Commandments-like cases. They've done already done the mopping up after O'Connor's departure. So in some sense I'm not sure how much one can predict about this Court except that obviously it's a conservative court. What they did was focus on three of the four big issues that were easy targets once Justice O'Connor left. The second overall thing I want to say and I borrow here from a conversation with my colleague Mike Seidman, if what we see here is a conservative Court emerging or consolidated, as I put it to a reporter, consolidated conservative Supreme Court, what are its characteristics. Well, there are a bunch of nots that we can say. It's not an originalist court unless you do originalism on the kind of high level of generality that conservatives criticize liberals for doing. It's not a court devoted to judicial restraint as a matter of principle, the Seattle school cases or the integration cases are just an example of that. It's not an incrementalist court, taking small steps in the direction of you know to achieve something larger in the long run. And it's not a court that is particularly respectful of precedent. I'm going to say something about that in just a moment. Actually let me take that. Indeed with respect to the precedent, this week I think you could fairly say about a couple of the things that the Court did, one by Chief Justice Roberts, one by Justice Alito, that are disingenuous in their treatment of the precedent. In the school case, Justice Stevens points to the Boston School Committee case in which the Court dismissed for failure to present a substantive federal question, a challenge to the Massachusetts Racial Imbalance Act. The title of the statute is not insignificant here, given what Justice Thomas says about desegregation and imbalance. The Court in 1976, or wait a minute in 1968 when that case was decided, achieving racial balance by volunteer means when challenged constitutionally the constitutional challenge didn't present a substantial federal question. Now it's a decision on the merits technically. You could overrule, it's not a big deal, there are things you could say about cases decided in that way. What Chief Justice Roberts does is to say well it's distinguishable because there was nothing in the opinion that we were reviewing that indicated that the Massachusetts Racial Imbalance Act authorized the explicit use of race as a basis of assigning kids to schools. That's probably a fair description of the opinion but it's not I think, well I would say it's a disingenuous way of distinguishing the precedent. Again you could overrule it. I wouldn't have difficulties in terms of method if you overruled it. Something similar happens in Justice Alito's opinion in the standing case, Hein. The distinction that he offers between Hein and Flast and Cohen is that in Flast there was a challenge to an express statute mandating the expenditure of funds. And that's not true in Hein and it's true that's a fair characterization of the two cases. The problem is that there is an intervening case Bowen against Kendrick which says you can bring as applied challenges establishment clause challenges and rely on Flast. Well what is an as applied challenge? An as applied challenge is a challenge to a discretionary decision made within the framework of an express statutory within a congressional statute. That is Hein. It's not distinguishable. You could say we made a mistake, you could say we overruled, we want to overrule Flast but that's now a reasonable way of distinguishing the cases. And Justice Alito spends four paragraphs on this issue and it's just not right. So when you pull this together actually the sort of what do you get out of this conservative, what it is to be a conservative these days. Well it's to be a policy oriented judicial decision maker. That is it's to be Earl Warren in William Brennan on the right side of the spectrum instead of the left side of the spectrum. I know if you like Warren and Brennan as methodologists then you can't go after Roberts and Alito as methodologists or you go after them on the same grounds that they're conservative rather than liberal but conservatives ought to be embarrassed by what they've produced, not that they will be but that's another matter. Okay, on to the integration cases. I want to approach it this way. There is John Parker was a judge on the Fourth Circuit Court of Appeals who was nominated by Herbert Hoover to sit on the Supreme Court in 1930. His nomination was defeated by a lobbying campaign that was led in part by the NAACP. Parker continued to serve on the Court of Appeals and he was one of the judges who sat on the panel that decided Briggs against Elliott which was the South Carolina case decided along with Brown against Board of Education. When the case was remanded to Parker's panel in 1955 Parker wrote an opinion that got a lot of attention at the time and what he said in the opinion was look you've got to understand what Brown does. Brown requires desegregation, it doesn't require integration. By desegregation he meant what Brown requires is that schools stop using race as the basis for assigning kids to schools. That was not an implausible reading of Brown at the time although I could go into this in detail later it's probably not the best reading of Brown I and the remedial order Brown II together. But it wasn't a crazy decision. What happened was that because of resistance in the south even to Parker's approach, that is desegregation not integration, the way people thought about the problem changed. And by 1968 the Court decided a case called Green against . . . . County School Board in which the Court said time for deliberate speed is over and what we need now are plans that work, promise to work, he said, promise to work and work now. Working, the only coherent sense you can make of the term working is that it envisions integration as the outcome. So by 1968 the Court thought that Parker's opposition between desegregation and integration had at the very least disappeared. And I think over the next few decades, new few years really, there was a general sense in the public that what Brown was after really was integration, racial mixing in the schools, whatever, however you want to characterize it, overcoming racial imbalance. One signal of that is something that Justice Stevens picks up on in his separate opinion, dissent, in the school cases. And it's something that in some ways gives Justice Breyer a problem in his dissent. There are all these expressions from Swan, from Chief Justice Rehnquist in the Los Angeles case, there are a whole bunch of thing in which people say there are constitutional problems that we have to worry about, about this and this, and this, but of course it would be okay if the school boards voluntarily relied on race to adopt these sort of programs. It went without saying so yeah it was dicta that was what Justice Breyer's problem was, these were all dicta, but the reason they were dicta was that there was a background assumption that it would silly to challenge them constitutionally, silly to raise a constitutional challenge to voluntary programs. And so then go forward to today. So you have you know Swan in 1972, people assuming that voluntary race based programs are fine, constitutionally permissible, maybe even desirable if not required. Go ahead 30 years to the present and where we are is with the qualifications I'll get to in just a moment we're back to Judge Parker. What Brown requires is desegregation not integration. Indeed we're back further than Judge Parker because what Brown means is that desegregation is required but integration as a consciously pursued policy that includes race based assignment of kids to schools is constitutionally impermissible, even Judge Parker I don't think would have said that in 1955. Now the qualifications here, the qualification here is I actually think that the four justices, Chief Justice Roberts and the others, are at the point that I've said, that is integration is a constitutionally impermissible goal. What Justice Kennedy says is that you can, he says two things, the broad thing he says is that you can use race conscious programs that are designed to achieve racial balance with a qualification that I'll indicate in just a moment that if those programs include the assignment of kids to schools on the basis of race you've got to be much more careful than Seattle and Louisville were. Now just a footnote on this. Four about a decade there has been a lingering question about whether race conscious programs aimed at achieving racial balance, integration, diversity however you want to characterize it, were constitutionally permissible. Before Gratz and Grutter there was a serious constitutional question about the 10 percent plan adopted in Texas, for example. Justice Kennedy's opinion, I think, now resolves that question. Race conscious programs that are adopted with the conscious goal of achieving racial balance and so on are constitutionally permissible in his view. And presumably in the view of the four dissenters as well. So then the question is well okay you can do all these things, what's wrong in Justice Kennedy's view with the Seattle and Louisville programs. And here it turns, I think, it will take a while to study this but I think that what's wrong what he's is wrong is quite narrow and intentioned with the rhetoric of the rest of his opinion, the section where he says okay here's I'm going to tell what's wrong with these programs is in Seattle, or in one of the places it's really unclear what the program is. There is this kid who applied to kindergarten and they said you can't go to kindergarten because you're white. But the written program says it doesn't apply, the race based assignment program doesn't apply to kindergarten. So what's going on here. We don't know what the nature, he says, the problem is, this isn't in the technical terms it's not narrowly tailored because we don't know what the program really is. If you want to do this kind of program and that's the nature of the problem not hard to address. You write out what the program is. The other thing that he says is, he says two other things. One other thing he says is that in both Louisville and Seattle the programs are, I'll use a term that comes up in the scholarship, they use the racial binary, black vs. white. And in our society the racial binary is not the best way to do to seek to achieve racial balance. Okay so again that's fairly easy to remedy. In Seattle where you have a fair chunk of Asian-Americans do your calculations including Asian-Americans and then you know from all that he says you're home free. The final thing he says, this actually is I think interesting and trickier. If you look at what happens in these schools it turns out that they get really close to their targets by using policies other than race based assignment of kids to schools, 30, 50, I don't remember the number at the moment, a relatively low numbers of kids are actually affected specifically by these programs by the race based assignment programs. Now what he says is if you can get as close as you're getting without using these things you've got to explain better why you need to get even closer by using this sort of policy. What that suggests is that in other and so to that extent the objection to the program in Seattle or in Louisville is not that substantial. I mean it's hard to remedy that one but it's not that substantial, it wouldn't have undermined these policies generally. In other contexts it's not clear whether race conscious policies of the sort that Justice Kennedy adopts would get as close to racial balance as the policies in Seattle and Louisville do. And so then the question would be how seriously is the concern about narrow tailoring, that is, to get it to fit better you have to use this stuff. Put it the other way, you didn't have to use this stuff to get it to fit reasonably well in Louisville and Seattle. Some other place what if you do have to use it to get it to fit roughly as well as it did in Louisville and Seattle, we don't know what he said, but and here's the final point if there are school boards, school districts that are committed to these kinds of programs, footnote, in the way that southern schools boards after Brown were committed to the maintenance of segregation, then school boards with that degree of commitment have a fair amount of leeway to and I would use the term resist what the Court did. They can use Justice Kennedy's opinion fairly as a way of attempting to maintain programs very much like the ones that they've already instituted and then take the risk of litigation and so on but you know after Brown it took a decade and a half for integration, desegregation to come to the south, you know lots of things can happen and did between 1954 and 1968. Between 2007 and 2022 another 15 year period, lots of things can happen. If you are committed to these programs these opinions don't tell you you have to fold your tents and go away. Let me start with the school cases and then I'll turn to some other observations about the term. And let me set the stage. I agree with most of what Mark said but I think a little context would be helpful. The first thing to say about this is that if you look at the demographics the problem of racial isolation in public schools is one that is growing and is growing at alarming rates. Justice Breyer's dissent attaches as an appendix which has data up through the year 2000 about the growing isolation, racial isolation of public schools and according to this chart in 2000 nearly 40 percent of black public school students in the United States went to public schools that were 90 percent black or higher. Three-quarters went to schools that were more than half black. This is in 2000. If you look at the web site numbers now these concentrations have gotten even greater and the numbers for high school students are much more sobering than for the general school age K through 12 school age population. About 60 percent these days of black high school students attend schools that have 90 percent or greater black enrollment. So that is the landscape on which these cases were decided. Now in response to this over 1,000 school boards in the nation have adopted policies similar to those that were used in Seattle and Louisville. These were voluntary measures designed to achieve designed to combat what the schools thought was racially isolated schools. In many of these school districts like Seattle and Louisville used race conscious policies to try to promote greater diversity within their schools. Mark said earlier that one of the interesting things about this Court is its selection of cases to reach down and to revisit cases that were decided when Justice O'Connor was on the Court by 5-4. One of the interesting things about these cases is there was no real reason for the Court to take them. This is not an instance in which there was a split among the circuits, in fact the circuits had been surprisingly unanimous in upholding these kinds of race conscious programs. Indeed two well respected, well regarded circuit justices, Judge Kozinski on the Ninth Circuit and Judge Boudin on the First Circuit had both in en banc cases both called not for strict scrutiny but for relaxed scrutiny of these kinds of programs because they did not target a single race for disadvantage. And both Judge Kozinski and Judge Boudin argued very forcefully that these kinds of race neutral but race conscious programs that is, sometimes a black student might be transferred to his or her second choice, sometimes a white student would be transferred, Judge Kozinski and Judge Boudin argued that less than strict scrutiny, some form of intermediate scrutiny should be applied to these programs in part because they served an important public function and in part because they were not directed at any single race. So one question that ought to be asked but I had not really seen any discussion about, is why did the Court take this case. And it may be that Mark is correct that these justices are looking for opportunities to revisit some of the more recent Court decisions like Grutter and Gratz now that there is a more solid conservative majority on the Court. The other thing to think about this case is it's hard to imagine a single court decision involving the greater transfer of power from school districts and states to the federal courts. There is no question that at least 1,000 school districts this morning are sitting down scratching their heads saying what can we do next year to try to combat the problem of racial isolation in our public schools. Well one of the difficulties I think they face is they really do not have very much guidance. As Mark points out the controlling opinion here is Justice Kennedy's and it is clear what Justice Kennedy doesn't agree with in terms of the majority in terms of the plurality decision but how much leeway he would permit school districts to exercise when it comes to fashioning programs to try to address the problem of racial isolation in public schools I think is opaque and I think is going to bedevil the lawyers who represent these school districts in trying to give them advice. All right that's the overview of the case. What did the Court do? Well I think and I don't think there is any real mistake about it, that the plurality opinion see a vast difference between race conscious programs put in under court supervision to address de jure segregation and voluntary programs put in by school boards in the absence of a court order. What is permissible legally under court supervision I think is per se illegal today as a result of voluntary school measures. The Chief Justice was quite emphatic about this in his opinion. He says although remedying the effects of past intentional discrimination is a compelling state interest, that interest is not involved here because these school districts were either never segregated by law nor now subject to a court order. And so as Justice Breyer points out in his dissent, you have this constitutional anomaly which is this, what was constitutional on one day is per se unconstitutional the next. And Justice Roberts' opinion does not leave any room, in my view, for voluntary programs based on the goal at least on K through 12 of promoting integration. He is quite emphatic, in my view, about that. So I don't think under the plurality's approach there is much room to maneuver. It's not at all clear to me that Grutter would survive if the plurality was a majority and I think much of the opinion really is sort of the hostility of the plurality to the Grutter approach. I think it's important to say a word about Justice Thomas's opinion as well. Justice Thomas' opinion is quite forceful and quite I think he takes this even a step beyond Justice Roberts, the Chief Justice. Thomas keeps on coming back to Justice Harlan's dissent in Plessey where Justice Harlan says the Constitution is color blind. As far as Justice Thomas goes, the analysis would begin an end right there. Any effort by the government, even remedial efforts, based on race conscious criteria I think in his view would be unconstitutional. And it's an angry opinion. He repeatedly refers to Breyer's dissent as adopting segregationist arguments. Quite a loaded way of expressing disagreement with another justice. But he plainly is unhappy with the dissent. The other thing that he does he spends an awful long time on a semantic battle with Justice Breyer. Justice Thomas begins his opinion by pointing out that the problem today is not segregation and this is a semantic battle that he obviously cares deeply about. He does not believe that racially isolated schools are segregated because in his view that word connotes de jure segregation and nothing more. Let me turn briefly to Justice Breyer's dissent which is long, impassioned and complicated. Judge Breyer begins by attacking one of the central premises of Chief Justice Roberts' opinion, which is the difference between de jure segregation and de facto segregation. And one of the points Justice Breyer makes is many school districts faced with a Brown-like case did not litigate the case to judgment and therefore were not subject to a court order but rather they settled the case. And one of the things he points out is that twice Seattle voluntarily entered into agreements to restructure the way admission practices were implemented in the city in order to avoid civil rights litigation. And so Breyer begins by asking the question given this history why do we place so much emphasis, why does the Court place so much emphasis on the difference between those cases in which a court was brought in to impose a decree and enforce it rather than look simply at the history of the school district. Breyer then essentially makes the straightforward argument that trying to address racial isolation in public education is a compelling state interest and that the approaches of Seattle and Louisville, akin to the approaches in 1,000 other school districts, are constitutionally valid. And here he points to the long history that Mark recited where the Court repeatedly said, albeit maybe in dicta, that these kinds of approaches to address racial isolation were constitutionally permissible. And so what Justice Breyer says is look the Court is quibbling here because the one thing that was clear throughout this history was that these kinds of voluntary measures were consistent with the equal protection clause and now all of a sudden in one fell swoop the Court is changing the rules. And Breyer, I think, rightly predicts that the consequences of the Court's ruling is not simply taking a step back away from Brown, because for example the D.C. school system which I know well, my children went there, is every bit as segregated today as it was before Brown. There were a few integrated schools in D.C. before Bolling and Sharpe and today there are a few but very few integrated schools in the district. So what Breyer says in essence is we've turned back the clock. The opinions in this case, I think, destroy any sense that this Court is somehow going to be more collegial than prior courts or that the approach that the Roberts Court is going to take is an incremental one. There is nothing at all incremental about this opinion, nor is there any measure of collegiality, the justices have taken off the gloves and have gone after one another in this case. Let me just make two briefs points about the term more generally. One is I think the Court's term suggested precedent may not matter as much as we thought it did. If you look at the Leegin case this is in the antitrust case, 100 years of precedent is overturned quite fastly by the Court on the basis of what the Court cites as economic evidence. The dissent points out the economic evidence cuts both ways, that is a rule that had been embraced by Congress repeatedly yet the Court throws out the window 100-year antitrust rule forbidding certain price maintenance agreements. I think there are real questions about whether this is going to turn out to be a strongly pro-business Court. If this term is any example the answer would probably be yes. I think Roy is absolutely right about the Wisconsin Right to Life case but what I think is really interesting about it which Roy only touched on is that the Court increasingly and this Court especially is finding that corporations have expressive rights under the First Amendment that require not simply some protection but may be protection equal to that of ordinary speakers. That would have an enormous spillover affect into other areas of law but I suspect that the right to life opinion will be read that way by the Court in succeeding cases. And lastly in terms of the establishment clause, my sense is that if the Ten Commandments cases were to come today this Court would have no problem, assuming you could sue to challenge this, I'm not sure that would be the case, I don't think it will be long before we see the Ten Commandments in courtrooms and in government buildings. This is a very different Court. Maybe the fact that there are five Catholic judges on the Court at once for the first time may have some influence but I suspect we will see a dramatic shift in establishment clause cases.
member. 
