[Solicitor General Paul] Clement urged the high court to resolve a lingering dispute over the meaning of the court's landmark decision in Brown vs. Board of Education. That 1954 ruling struck down racial segregation laws that prevailed in the South and parts of the Midwest and declared that segregated schools were "inherently unequal."...
"The promise of this court's landmark Brown (decision) was to 'effectuate a transition to a racially nondiscriminatory school system,' " he wrote. "The United States remains deeply committed to that objective. But once the effects of past de jure (legal) segregation have been remedied, the path forward does not involve new instances of de jure discrimination."
His argument is likely to get a favorable hearing from Chief Justice John Roberts and his conservative colleagues.
"It's a sordid business, this divvying us up by race," Roberts commented in June when the court ruled on a voting rights dispute from Texas. The court majority said Texas had violated the Voting Rights Act by shifting Latino voters out of a congressional district where they were nearing a majority, but Roberts expressed his dismay with the law's focus on the race and ethnicity of the voters.
The voting rights case is different -- importantly so, I think -- because it saw federal law mandating what Roberts called a "sordid business" and overriding a choice made at the state level. In the racial balancing case, local government has chosen that "sordid business" for itself, and the question is whether federal law should override it. Other conservative values -- federalism and judicial restraint -- therefore come into play. It's not just conservative versus liberal here. There is a complexity to the conservative side of the argument that ought to be recognized.