Well, we're now getting a feel for the new conservative majority on the Supreme Court, which ended its latest term with a bang, issuing a ruling that blocks government schools from overtly attempting to assign students positions in public schools on the basis of their race.
This followed another one of those "split decisions"—decisions that are split, not just in the vote, but in their reasoning. The conservative majority struck down an anti-trust rule that barred manufacturers from setting minimum retail prices for their products. But it did so in a way that arguably makes the law less objective, not more.
The ruling leaves in place the whole structure of the antitrust laws, which ban "restraint of trade" by restraining the trading practices of private businesses. More important, the antitrust laws provide no objective standard to determine what is or is not "anti-competitive," and for more than a century such decisions have been made by the courts ad hoc and after the fact.
The new ruling won't change that. In the words of Justice Kennedy's decision for the majority, "Vertical agreements establishing minimum resale prices can have either pro-competitive or anticompetitive effects, depending upon the circumstances in which they are formed." So we're back where the Sherman Act put us in the first place: no businessman can know if his actions are legal or not until after he is prosecuted.
The court seems to have done rather better with its last decision, whose essence was summed up in another memorable one-liner from Chief Justice Roberts: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
"Justices Limit the Use of Race in School Plans for Integration," Linda Greenhouse, New York Times, June 29 With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race.
Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools….
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he said. His side of the debate, the chief justice said, was “more faithful to the heritage of Brown,” the landmark 1954 decision that declared school segregation unconstitutional….
In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling” were “compelling interests” that a school district could constitutionally pursue as long as it did so through programs that were sufficiently “narrowly tailored.”…
As a matter of constitutional doctrine and practical impact, Justice Kennedy’s opinion thus placed a significant limitation on the full reach of the other four justices’ embrace of a “colorblind Constitution” under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect….
“If our history has taught us anything,” Justice Thomas said, “it has taught us to beware of elites bearing racial theories.”