An appeal to "good" conservatives

I don't like to write about law, and I rarely do. It seems a lot like a busman's holiday to me.

What interests me about a short piece by Jeffrey Rosen in yesterday's New York Times magazine, however, is the structure of the argument. You've read the usual crap by the usual dumb liberals. Jeffrey Rosen is a smart liberal. He's writing not for the benefit of the usual morons who read the NYT magazine; he's writing for those jurisprudential conservatives who consider themselves principled. And by principled, I mean conservatives who believe that when the law requires it, courts should reach "liberal" results or results that the conservatives would not themselves choose as a matter of policy. (As an aside, I'm fairly confident that there are more conservatives who consider themselves principled than there are liberals. Why that should be true is the subject of another busman's holiday.)

Rosen's piece begins with a wildly counter-factual proposition that is central to his thesis, which we must indulge him for present purposes: that affirmative action is not as divisive as it once was. He cites the political ad of a self-described "black Jesse Helms," focusing on preferences for illegal aliens, as if this somehow supported his proposition. He then states that this lessened divisiveness is the result of the Supreme Court's decisions in the University of Michigan case three years ago, which is itself a dubious proposition.

Rosen argues that this "cease-fire" may be short-lived, because the Court will soon have to deal with two new cases involving racial preferences in public schools as a means of achieving racial balance. He describes the government's brief in these cases as "urg[ing] the justices to draw an inflexible line: 'race-conscious measures' designed to address 'racial imbalance in communities or student bodies' are just as unconstitutional as the segregation struck down in Brown v. Board of Education."

Here's where the argument starts to get interesting. A dumb liberal would begin attacking the government's position, flailing away in anger and disbelief. A smart liberal uses another strategy. Rosen cites two "Republican" judges who have ruled in favor of school districts that have used racially based student assignments to balance the racial composition of public schools. According to Rosen, both judges thought that racial balancing did not favor one group over another. And one, Alex Kozinski, suggested (in Rosen's words) that "there's something unseemly (and not very conservative) about unelected judges second-guessing locally elected officials on matters of educational policy." A very "Republican" idea, right? Hard to complain, right? That's precisely Rosen's point -- to appeal to principled conservatives. Sure, it may be that both judges felt constrained by the Supreme Court's Michigan decision, but let that pass.

Now Rosen gets to the real action. He says that Chief Justice Roberts, while on record against racial preferences, has also spoken of the need to decide cases narrowly to promote consensus on the Court. Rosen writes: "If Roberts is serious about avoiding sweeping holdings, he might persuade his colleagues to converge around Kozinski's narrow position, which leaves open the possibility that racial balancing might be inappropriate in other contexts." That is, if Roberts is a "good" conservative, he'll leave in place precedent that he doesn't like. After all, writes Rosen, "the most politically effective Supreme Court decisions aim to calm partisan disagreements rather than inflame them." (Does that sound to you like the joint opinion in Planned Parenthood v. Casey?)

The only alternative, according to Rosen, is to inflame them. "If Roberts succeeds in preventing the court from fracturing this term into antagonistic blocs, he will have achieved something truly impressive. And if he fails, the country as a whole may become even more polarized." Rosen thus appeals to principled conservatives in his own way: Decide cases narrowly, accept liberal results, avoid partisan rancor.

But let me rewrite his argument: The liberals have won, and therefore everything is calm. If the conservative wing of the Court reverses that victory, because it sees the offending precedent as contrary to the Constitution, partisan rancor will be the result. Then, it will be the liberals, instead of the conservatives, who will be yelling about it. And we can't have that.