When he was but a nominee for a seat on the U.S. Supreme Court, John G. Roberts Jr. promised the kind of conservative jurisprudence that should make most people comfortable -- consensus, respect for precedent, no urgent need to radically rewrite the laws of the land. You know, none of that radical, activist judging stuff that only those horrible liberals get up to.
Now that he has completed his first full term as chief justice of the United States, what Roberts has given us is a divided and divisive high court, one that uses contorted reasoning to demolish long-held understandings of what the law is, in favor of particular results supporting certain ideologies.
The term that just ended included a flood of highly controversial rulings that upset precedent even as they claimed not to -- a rhetorical feat that even Antonin Scalia, perhaps the most conservative of all the justices, called less than honest. Among them were rulings that upheld federal limits on a certain sort of late-term abortion, that struck down a key portion of the McCain-Feingold campaign finance law, that went totally retrograde in undermining the First Amendment rights of students and, finally, that claimed to honor the spirit of the historic Brown v. Board of Education school desegregation decision while eviscerating its effect.
Many of those decisions came down 5-4, with various concurring opinions that served to further confuse everything. So much for Roberts' supposed desire for the kind of judicial consensus that, whether one agrees with a ruling or not, at least lets people know what is expected of them.
This judicial upset is particularly damaging in the ruling that ended race-conscious attendance policies in Seattle and Louisville, Ky. School boards, administrators and litigants of all points of view will find it difficult to puzzle through the plurality opinion -- and, more importantly, Justice Anthony Kennedy's half-hearted concurrence -- to figure out just how to design policies that fight the social segregation of cities by integrating public schools so as to reflect and serve the larger community.
Kennedy was correct to reject Roberts' simplistic theory that looking at a student's race when handing out slots in various schools is always forbidden as unconstitutional discrimination. The swing justice said he would not support a reading of the Constitution that forced school districts to "accept the status quo of racial isolation in schools."
But good luck to the school district that now tries to design an integration policy that will stand.