A military judge at Guantanamo Bay, Cuba, refused on Friday to reconsider an early June ruling that a military commission does not have the authority to hold a war crimes trial of a young Canadian detainee, Omar Ahmed Khadr. Turning aside a plea by military prosecutors, Judge Peter E. Brownback III, an Army colonel, said again that the military panel that reviewed Khadr’s status had not found him to be an unlawful enemy combatant, so a commission trial cannot be held and war crimes charges had to be dismissed. This new ruling set the stage for a Pentagon appeal — if some uncertainty over the availability of a proper appeals court is sorted out.

Brownback’s order was the second significant setback of the day for the Bush Administration’s handling of detainee affairs. It followed the Supreme Court’s agreement, over Administration opposition, to hear two appeals over detainees’ legal rights that the Justices had declined to hear in April. (A post discussing this other development can be found here.)

The judge’s earlier order dismissing charges against Khadr was the second of two such rulings by a judge at Guantanamo on the same day. In a separate proceeding, another judge dismissed charges against Salim Ahmed Hamdan, for the same reasons. Prosecutors had also asked that judge to reconsider, but there was no word from that judge on Friday.

Judge Brownback, in a 10-page order in the Khadr case, found here, said the plea for reconsideration to did not offer any change in the facts or law since his June 4 order finding no jurisdiction over Khadr’s case. But, the order went on, because of the prosecution request, he was clarifying the rationale for his earlier decision. While refusing to reconsider, the judge went ahead to dispose of each of the prosecutors’ arguments against the dismissal “in the interest of conserving judicial and other resources” should the case be appealed either to the new Court of Military Commission Review or the D.C. Circuit Court.

The order implicitly raises questions about whether the order dismissing the charges on June 4, or Friday’s refusal to reopen that order, can be appealed. Brownback suggested it was up to “an appellate court” to determine whether an appeal can be pursued. But there is another layer of uncertainty that the judge did not mention: the Court of Military Commission Review has yet to be formally established, and federal law requires the government to file a notice of a pre-trial appeal within five days after the order being challenged. The appellate route to the D.C. Circuit is also not free from doubt. The Military Commissions Act gives the D.C. Circuit the authority to review final decisions of the military appellate court, and some pre-trial decisions by that court. Unless the military review court exists, the D.C. Circuit might not be open to an appeal.

The Brownback order essentially contains two parts. In the first, he found no basis for reconsidering the June 4 dismissal, since nothing new was presented to him, as he saw it. But the bulk of the order is a point-by-point rejection of the prosecutors’ arguments challenging the merits of the June 4 decision.

The core of his two rulings is that the MCA allows commissions to try war crimes charges only when they are made against an “unlawful enemy combatant,” as determined by a military Combatant Status Review Tribunal. Brownback found that Omar Khadr had been found by a CSRT to be only an “enemy combatant,” without the designation of “unlawful.” He reiterated that conclusion in fuller form Friday.

(A post discussing the prosecutors’ plea for reconsideration can be found here.)

Co-authored by Adam Chandler.

CNN has this story on the High Court’s decision to hear Guantanamo detainee cases, Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196); William Glaberson of the New York Times reports here on the Court’s decision to reconsider the appeals from two detainees; Bloomberg’s Greg Stohr and Laurie Asseo have this article; Pete Yost of the Associated Press reports here; NPR has this coverage of the Court’s reversal; and Orin Kerr weighs in here at Volokh Conspiracy.

NPR’s Nina Totenberg weighs in here on the school decisions; Linda Greenhouse reports here in today’s New York Times; Jess Bravin and Daniel Golden of the Wall Street Journal have this frontpage article; and this editorial runs in today’s Boston Globe. The Carnegie Legal Reporting’s Lawbeat blog reports here on news coverage of the school assignment cases.

The Associated Press has this interactive wrap-up of the October 2006 Term featuring a voting lineup display (incorporating like legal reasoning in addition to general agreement or disagreement on the result) among other graphical analyses. The ACSBlog has this recap of its annual review of the Supreme Court Term, which was held yesterday; video of the entire panel discussion is available here.

This piece by Greenhouse on the front page of yesterday’s New York Times discusses the jurisprudential battle between Justice Scalia and Chief Justice Roberts. At Slate, Emily Blazelon has this story on the “extremely conservative chief justice.” Cass R. Sunstein had this op-ed in yesterday’s Washington Post discussing “a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists.” At Bloomberg, Greg Stohr reports here that Chief Justice Roberts “spearheaded a shift in American law that cut back precedents from a more liberal era” and James Vicini of Reuters has this analysis on the Court’s new direction. Peter Lattman comments on the Chief Justice’s conservatism here at the WSJ.com Law Blog.

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The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.

I’d like to briefly comment on the dissents and some of the points made by others on this site concerning the school decisions.

1. Ben Winograd has questioned Justice Stevens’s provocative peroration, to the effect that all of the Justices who were on the Court in 1975 would have disagreed with the decision, and specifically states that “one could reasonably debate” what then-Justice Rehnquist would have done. Some of the comments disagreed.

At the outset, of course, precisely what Justice Stevens is saying is unclear. Is he suggesting that the vote would have been 9-0 if the case had been decided in 1975? Or that, those same Justices, were they all alive today some 32 years later, would still disagree with the majority? People and times do change, so I’m not sure those are the same questions.

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Below are the questions presented from the original petitions for certiorari in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Click here for more materials from the two detainee cases, which the Court this morning said it will consider next term, and here for Lyle’s analysis.

Boumediene

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah

1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?

2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?

3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?

Today’s order granting rehearing in the consolidated cases is here.

On February 20, the D.C. Circuit Court issued a 2-1 ruling against the detainees, available here.

The original petition for certiorari in Boumediene, filed March 5, is here, and Al Odah is here. Both were denied on April 2, with Justice Breyer authoring a dissent from denial here, and Justice Stevens and Kennedy writing here respecting the denial of cert.

The Boumediene petition for rehearing, filed April 27 and granted today, is here, and Al Odah is here. The Solicitor General’s reply, filed June 19, is here.

Lawyers for the detainees responded on June 21 and 22. The Boumediene reply is here, and the Al Odah reply is here. The Al Odah reply includes a signed declaration by Stephen Abraham, an Army Reserve lieutenant colonel, criticizing the Combatant Status Review Tribunal process set up to determine the “enemy combatant” status of Guantanamo detainees. The filings are discussed in more depth here.

On Tuesday, attorneys for other Guantanamo detainees filed a “notice of recent activity in Guantanamo cases” in U.S. District Court in Washington, D.C., available here, in an attempt to forestall the Justice Department’s motion to dismiss all pending habeas petitions.

UPDATE to 12:50 p.m.

In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court — from denial to rehearing and new argument and decision — may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.

The order also said that new briefs will be sought, after the D.C. Circuit rules in pending cases on how judicial review is to work for detainees under the Detainee Treatment Act of 2005. The cases to be reheard by the Supreme Court are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). In those cases, the D.C. Circuit ruled on Feb. 20 that the Military Commissions Act of 2006 had stripped detainees of their rights to bring habeas challenges to their confinement. That is the ruling that the Supreme Court left intact in April, but now will move forward to review.

Under the Court’s Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as “enemy combatants.”

Friday’s order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that “possible court action” in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.)

Under the Court’s rules, a rehearing is granted only if there has been a change in “intervening circumstances of a substantial or controlling effect” or if counsel can cite “substantial grounds not previously presented.”

The new order did not state what changes had come about since the denial in April. The detainees’ lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees’ lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a “sham.”

It is unclear at this point just when the Court’s new review will unfold. The D.C. Circuit on May 15 heard oral argument on the procedures it will follow in review under DTA of “combatant status review tribunal” decisions to continue holding detainees at the U.S. military prison in Cuba.

The Circuit Court probably will feel some added pressure from Friday’s Supreme Court order to move ahead and decide those cases — Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397).

The Circuit Court, however, was already moving with some dispatch to resolve those cases, because the first of the actual appeals in a DTA case is under a briefing schedule beginning on July 16, with an oral argument set for Sept. 27 That is the case of Paracha v. Bush (06-1038). (The Paracha case is also on its way to the Supreme Court, on the same questions about detainee legal rights as in Boumediene and Al Odah, with an appeal likely to be filed early in July.)

Once the D.C. Circuit has ruled, that decision, the Supreme Court said Friday, “would be of material assistance” to the Justices. With the Circuit Court ruling in hand, the Supreme Court will call for new briefs in the Boumediene and Al Odah cases. Conceivably, a briefing schedule could be completed this summer, and oral argument could be held early in the new Term, if the cases were to be expedited, as might be expected.

Although the Justices may not have been technically aware of other developments, activities in other detainee cases may well be affected by the grant of review in Boumediene and Al Odah. The Fourth Circuit Court is considering a government request to rehear en banc a panel decision there barring the military from detaining any civilian captured inside the U.S. as a terrorism suspect (Al-Marri v. Wright, Circuit docket 06-7427), and the D.C. Circuit is considering a request for initial en banc review of a case involving a Guantanamo detainee who is facing a war crimes trial before a military commission (Hamdan v. Gates, Circuit docket 07-5042). In addition, several District Court judges in Washington, D.C., are considering whether to dismiss other detainee habeas cases on the basis of the D.C. Circuit ruling that is at issue in Boumediene and Al Odah.

The following commentary is from Andrew Pincus, a partner in Mayer, Brown, Rowe & Maw LLP, who filed an amicus brief for the Leadership Conference on Civil Rights and the Leadership Conference on Civil Rights Education Fund. The views expressed are his own.

Yesterday’s decision in the schools cases, and a number of the other decisions this Term are disappointments on many levels.

The last paragraph of Justice Stevens’ dissent struck a chord with me. Referring to the summary affirmance of a Massachusetts state court decision upholding a law requiring plans like those struck down yesterday, Justice Stevens wrote:

“The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

Today’s Court is very different in significant ways. That difference, I think, is one of the keys to several of this Term’s decisions, including the decision in Louisville and Seattle.

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The final Order List is here.

The Supreme Court will not hold a public session today, but at 10 a.m., it will release the final Orders List of the Term. After that, the Court will be in recess until the new Term opens on Monday, Oct. 1. We will post the orders promptly after their release today.

The Justice Department on Thursday urged the D.C. Circuit to resist a plea that it sit en banc and overturn its recent ruling putting an end to Guantanamo Bay detainees’ habeas challenges to their confinement. Responding to that Court’s request for its views on a proposal for initial en banc review of Hamdan v. Gates (07-5042), the Department said the Feb. 20 decision was right, has been twice left intact by the Supreme Court, and should not be revisited after only five months. The response can be found at this link.

Earlier, the government had urged the Circuit Court to go ahead and dismiss the appeal of Salim Ahmed Hamdan, who is seeking to challenge his detention and the war crimes charges he expects to face before a “military commission” at Guantanamo. This was based on the Circuit Court’s February ruling in two packets of detainee cases (the lead case was Boumediene v. Bush) — a ruling that the Supreme Court declined to review (once in those packets of cases, and once in an earlier petition by Hamdan).

Because Hamdan regards the Circuit Court ruling as so broad that his pending appeal there would be futile before a three-judge panel, he asked the Circuit Court to take his case initially en banc. That is the plea the government opposed on Thursday.

It is clear, the Department contended, that the Military Commissions Act of 2006 wipes out Hamdan’s habeas case. If he has any complaint about his detention as an “enemy combatant,” it added, he can raise that in a separate new proceeding in the D.C. Circuit under the Detainee Treatment Act of 2005.

Its opposition recites many of the same arguments that the Department had put before the Circuit Court in the Boumediene cases.

Meanwhile, the Supreme Court may announce on Friday its reaction to a plea by the Boumediene and Al Odah v. U.S. detainees to reconsider its April 2 denial of review of the Circuit Court ruling scuttling their challenges under the MCA. Two rehearing petitions (in 06-1195 and 06-1196) were considered at the Court’s final Conference of the Term earllier Thursday, according to the Court docket. Chief Justice John G. Roberts, Jr., said on Thursday morning that orders resulting from that Conference would be made public at 10 a.m. Friday.

Concluding the Term, the Supreme Court decided three cases today: the opinion in the school cases is here; the Panetti opinion is here; and the Leegin Creative opinion is here. During this morning’s session, Jason provided live updates from the Court in this post. Lyle has this initial post on the Court’s school assignment decision and this post on the antitrust and capital rulings. He also reports on the Chief’s closing remarks here. A visual of the voting breakdown in the school decision is available here and Ben Winograd has this post on the widely noted conclusion to Justice Stevens’ dissent.

Lyle posted this primer on the school cases. Tom analyzes Justice Kennedy’s concurrence here. Michael Rosman has these comments on the majority opinion and Kennedy’s concurrence and Hans Bader weighs in on the decision here. Lyle adds this commentary on the decision and Kennedy’s influential vote and Bob Driscoll weighs in here on the decision’s import.

Amy has this post on the decision in the Panetti v. Quarterman capital case.

A Super StatPack providing end-of-Term statistics and analysis is now available here - thanks to Jason, Ben & Adam. Jason also has data on the remarkable Term that Justice Kennedy put together here. And I collect news and blog coverage of today’s opinions in this post, which will be updated throughout the afternoon.

Lastly, Tom has this post on SCOTUSblog’s momentous 100,000 hit day.

I wanted to put up a quick post to note that, according to Statcounter, in just a little bit we will for the first time surpass 100,000 hits in a day, and we’re on track to have our first week of 250,000. (That number excludes opinion downloads, which we moved to another server for the day to speed up the blog’s responsiveness.) We’re exceptionally grateful for the very generous links we’ve gotten from too many great sites to mention, but which include (to name just a few) How Appealing, Volokh, Daily Kos, and Slate.

Also critical has been the work of the SCOTUSblog team at getting great content up quickly. From 10 to 10:45 this morning as the cases were decided, we had a six-person editorial conference call to coordinate our coverage — definitely a first for us. Like so many blogs, we try very hard to provide timely and thoughtful information in our little corner of the world.

We now have the equivalent of almost four full-time employees. Lyle is of course our unparalleled reporter; the best in the business. Amy manages the site and writes as well. Jason does thousands of things. He is now joined by Ben Winograd. Gretchen, at Amy’s firm, does round-ups and organizes the discussion boards. We have Adam Chandler as a terrific summer intern. David Stras has covered numerous issues, and added a terrific academic viewpoint. And outside contributors have given us lots of great posts in their areas of specialty from diverse perspectives, including the great pieces coming in now on the race cases.

Amy and I remember how excited we were to get 100 hits in a day (all of them thanks to Howard Bashman) when we started SCOTUSblog five years (and several versions of the blog) ago. We’re gearing up for another substantial upgrade to the blog and its technology over the summer, and hope that we’ll see you again. We’re very grateful.

The following entry is from Bob Driscoll, who represented Amicii Curiae David Armour, Abigail Thernstrom, and Stephan Thernstrom and served as a Deputy Assistant Attorney General in the Civil Rights Division of the United States Department of Justice from 2001-2003.

I find several things interesting about today’s opinions:

First, on a practical level, I do not think that the decisions provide much comfort for school districts that desire to engage in racial balancing of the type sought by Lousiville and Seattle. I am aware that much will be read into the Kennedy concurrence, but in my experience, the type of plans Lousiville and Seattle employed are near-exact replicas of remedial plans imposed by courts as a remedy for de jure segregation — and therefore are almost exclusively concerned with racial balance outcomes and will be hard to justify under any Grutter-type analysis. Moreover, the suggestion by Justice Kennedy that race may be used as “one factor” of many is difficult to comprehend in the K-12 public school context where assignment is not competitively-based. It will be interesting to see what districts and courts do in response to the Kennedy concurrence, but I do not think that this situation is analgous to Gratz and Grutter, after which admissions officers merely began to chant “one factor” while continuing to make essentially race-based decisions in the same manner that they had been. School districts will have a very hard time evading this decision if they disagree with it. While those who are skeptical of governmental race-based decision-making may not view the result in these cases as philosophically pure due to the Kennedy concurrance, it is nevertheless a practical victory in my view. I do not see many plans with maximum or minimum racial percentages surviving a well-crafted challenge in light of these opinions.

Second, although the Breyer dissent mouths the words “strict scrutiny,” it is clear that the dissenting Justices would apply some lesser level of scrutiny to “inclusive” governmental decision-making based on race if given the opportunity. Indeed, in discussing the social science research on the purported educational benefits of diversity, the Breyer dissent acknowledges a split in academic authority on the topic, yet then goes on to defer to school boards’ choice of what research to give credit to — I’m not sure what that means, but its doesn’t seem like strict scrutiny to me if a “compelling” justification can be articulated by choosing favorable social science research from a body of inconsistent studies (one can imagine the fun that could be had in selecting social science studies in the criminal justice field to justify race-based decsion making by the government). What is unclear is where Kennedy stands on how one defines a “compelling” interest. While he clearly finds “diversity” a compelling interest, he provides little insight as to whether he agrees with the rationale of the dissent with respect to deference to school boards or simply assumes that “diversity” in education is a compelling interest post-Grutter without reaching the question of what type of evidence must be presented to establish a “compelling” interest.

Finally, on a much broader level, I think the significance of these opinions may be that they will be viewed as the Court’s (or 5 Justice’s) signal that it rejects the notion Grutter opened the floodgates for a “diversity” rationale for race-based decision-making in any context. Given that 5 Justices took pains to distinguish Grutter, a higher ed admissions case, from the K -12 context, it seems to me that arguing that “diversity” outside of the educational context (employment, for example) can be a compelling justification for race-based decision-making just got a lot harder.

As has been widely noted already, Justice John Paul Stevens ended his dissent in today’s school assignment cases by writing:

“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

Upon Justice Stevens’ appointment by President Gerald Ford, the Supreme Court in 1975 consisted of the following Justices (accompanied by the Presidents who appointed them and the years each served on the bench):

- (Chief) Warren Burger (Nixon, 1969-1986)
- William J. Brennan (Eisenhower, 1956-1990)
- Potter Stewart (Eisenhower, 1958-1981)
- Byron White (Kennedy, 1962-1993)
- Thurgood Marshall (Johnson, 1967-1991)
- Harry Blackmun (Nixon, 1970-1994)
- Lewis F. Powell (Nixon, 1971-1987)
- William H. Rehnquist (Nixon, 1971-2005)

We’ll never know if Justice Stevens’ assessment would have been true. But it is fair to say that one could reasonably debate whether then Justice Rehnquist would have opposed today’s opinion, given his votes against racial classifications in other Equal Protection cases – i.e. Bakke (1978), Adarand (1985), Metro Broadcasting (1990) and, most recently, Grutter (2003) and Gratz (2003).

This post was written by Jason Harrow, with research assistance from Adam Chandler.

Justice Kennedy’s just-completed October Term 2006 will certainly go down as one of the most “successful” in the Court’s modern history. Indeed, the statistics are remarkable: Justice Kennedy was in the minority only twice this entire Term, he wrote only one dissenting opinion, and was a perfect 24-for-24 in 5-4 (or 5-3) cases. If the numbers alone weren’t enough evidence of his tremendous influence, he certainly ended the Term with a flourish: he authored two of the Court’s three 5-4 cases that were announced today – siding with the liberals in one and the conservatives in the other – and also wrote the controlling concurrence in the school assignment cases, which he proceeded to read aloud from the bench. It was a remarkable way to end a remarkable Term.

Digging deep back into the archives, it’s difficult to find a Term where the decision of a single justice so often determined the direction of the Court. In the last 20 years, under Chief Justices Rehnquist and Roberts, such an achievement in unparalleled. The closest analogy is Justice Kennedy’s own 1993 Term: in that year, he dissented four times, wrote one dissenting opinion, and was in the majority in 12 of 13 5-4 decisions. Not bad, but it doesn’t measure up to what he accomplished this Term.

Even Justice O’Connor, whom some used to refer to as the “most powerful woman in the world” due to her position in the center of the Court for many years, never had a Term like this. Her most successful Term was OT03, when she was in the minority five times and wrote two dissents; still, in that Term, 4 of her 5 dissenting votes were cast in 5-4 cases (there were 19 5-4’s in OT03). While it’s true that she often wrote “controlling concurrences” whose outsized influence wouldn’t necessarily be reflected in the numbers but which did put a stamp on the Court’s jurisprudence, it’s difficult to make the case that she ever exerted as much influence as Justice Kennedy seems to be right now.

One must look way back in the Court’s history to find any single Term where one Justice had comparable success. Justice Kennedy’s two dissenting votes tied Justice Brennan’s output in October Term 1968; with a larger caseload back then, though, Justice Brennan’s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White’s October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).

The bottom line is that, by most measures, Justice Kennedy’s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.

The following commentary is from Alan Foutz, Pacific Legal Foundation. PLF is amicus and part of petitioners’ legal teams for both cases; PLF attorneys participated in every phase of the Seattle case including the oral argument when the Seattle case was before the Washington Supreme Court.

After a preliminary review of this decision I’d like to first highlight the lone point upon which five justices agree.

Because the assignment plans in Seattle and Jefferson Co. did not take race into account as one of several factors designed to attain a broad exposure to diverse people, cultures, ideas and viewpoints, the rationale that was upheld in Grutter does not apply here. A finer point must be put on this, however. The Court said that the plans at issue used only binary classifications; e.g., black/other and white/non-white. By so doing, there is no way the districts could attain the “diversity” that they claim they are pursuing. So, Grutter does not apply because of the crudeness of the districts’ classifications (a failure of strict scrutiny’s “narrowly tailored” prong), not because the educational benefits of diversity apply to grade schools’ in equal measure as the benefits that diversity bestows upon a diverse law school student body (the “compelling state interest” prong of strict scrutiny). Thus, five justices agree that the use of race as a dispositive and mechanically applied factor in public education is unconstitutional. This is so even if race is not the first or second factor being used to make a particular decision. As long as race ends up being the final “tiebreaker” it will be held an unconstitutional use of race.

I am coming to agree with Mike Rosman’s analysis that there is not that much difference between the plurality opinion and Justice Kennedy’s concurrence - in that the plurality can reasonably be read to focus on the narrowly tailored aspect of strict scrutiny. When C.J. states that the parties “dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits” it seems to me that C.J. is saying there is a debate over whether there is a compelling state interest in attaining a diverse student body. Of course, this is the question that would most significantly impact future desegregation plans and Fourteenth Amendment jurisprudence the most. So, it may end up being difficult to lay the entire blame for a uselessly narrow decision completely at the feet of Justice Kennedy. Justice Roberts may simply be making good on his confirmation hearing promises to issue narrow decisions.

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Following up on my earlier post focusing on the legal rule that emerges from the school race cases – and Justice Kennedy’s concurrence in particular – I think it is possible to make some preliminary judgment about the decision’s effects.

I start from the premise that Justice Kennedy’s concurrence states the controlling law on the points on which there is daylight between himself and the majority. His opinion is necessary to get to five votes on those issues, and his vote would be required in any case raising follow-up questions. So, as a formal matter, the Fourteenth Amendment does not forbid the consideration of race in the design of school systems. Schemes that do not classify on the basis of race (such as school placement based on neighborhood dynamics) are per se permissible, and there is substantial room to argue in favor of assignment programs that make race one factor among many others in a holistic assessment of the students.

So, progressives may be relatively sanguine about the decision. (And conservatives may be disappointed.) For liberals, it could have been – indeed, after argument, it was widely expected to be – much worse. Justice Kennedy has long expressed great distrust of the government’s use of race in its decision-making. There seemed every prospect that he would join in an opinion substantially limiting affirmative action and cabining the Grutter decision approving a limited form of affirmative action in admissions. Instead, five Justices today reaffirm the four corners of Grutter.

But what about the effect of today’s decision as a practical matter? Here, I think that the divergence between Chief Justice Roberts’ plurality opinion and the Kennedy concurrence substantially evaporates. Today’s decision allows school districts to further integration by placing schools and drawing attendance lines that bring together neighborhoods that are otherwise segregated based on racial housing patterns. But the effect of those measures will necessarily be limited: new construction is rare in proportion to the number of existing schools, which are often located squarely in the heart of existing non-diverse neighborhoods.

Justice Kennedy’s proposed alternative that schools consider race as one among many factors in admissions (a la Grutter) strikes me as impractical. K-12 school assignment is not comparable to the admissions process for college and graduate programs. For resource reasons at the very least, school districts must paint with a much broader brush. I am not aware of a non-magnet program in which school districts regularly consider individual criteria in assigning the thousands of students within their jurisdiction. (For younger students, there is also less to consider; your average third grader has a short CV.)

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Commentary

If Justice Anthony M. Kennedy is to hold the one vote that counts as the Supreme Court continues the decades — perhaps centuries — of struggle with the role of race in American law, and that seems beyond any shred of doubt after Thursday’s ruling in the Seattle and Louisville cases, it is significant that the liberal-to-moderate wing of the Court will go on trying to coax or shame him into remaining more or less in the middle. The post on this blog by colleague Tom Goldstein analyzing Kennedy’s concurrence Thursday makes clear why his declarations are controlling, and why race is still not a totally forbidden factor in public education policymaking.

What Kennedy’s opinion does not openly admit, but what Kennedy’s view of his role has long made clear, is that he is deeply sensitive to the way his work as a judge is and will be perceived in history. This is not true only in the work of the Court on race questions, but on other social or cultural issues as well.

While his own quite conservative instincts must make it enormously tempting, now that there are four rigorously conservative colleagues, to join them routinely, the pull of reputation and public image appears to have told him to hesitate. He is even less tempted, of course, to join routinely in the more robust liberalism of his other four colleagues. Both help explain why he is so determinedly the middle Justice — a position that is especially vivid at the conclusion of the just-completed Term.

What was fully on display on Thursday, amid a great deal of courtroom drama and soaring rhetoric, was the contest that is going on within the Court to influence Kennedy and his vote. And, in that contest, it can be argued that the Court’s liberal bloc — although it seems increasingly isolated on some of the bigger decisions — is having a substantial effect on reinforcing Kennedy’s instinct to keep staking out the middle. The sharp critique of the dissents plays into another facet of Kennedy’s self-perception.

He has a fundamental distaste for the heroic and simplistic constitutional dogma — so popular with two and perhaps more of his conservative colleagues — that leaves everyone to fend for themselves in decidedly uneven political or legal combat. He regularly seeks to put on display a large — perhaps even a grand — perception of the law that leads some unsympathetic observers to regard him as a puffed-up thespian using the Court and other public forums as a personal stage. And one of his grandest perceptions is that, if possible, the law should be made inclusive and should remain sensitive in human terms. (There is no doubt that Kennedy would regard even his much-criticized romanticizing of the relationship of mother and unborn child in the abortion ruling this Term as exhibiting just that kind of sensitivity, just as he probably also saw his often-maligned opinions in the past on gay sexual relations and on prayers at school graduations.)

The school cases are a clear example. His vote was necessary to control the outcome, and it very likely is true that the fervor of the dissent helped keep him away from a full embrace of the principal opinion by the Chief Justice. Indeed, while the dissents are blistering in their denunciation of the Roberts opinion, Kennedy’s criticism of it was likely to have a sharper sting. It provided a separation from Roberts’ more sweeping declarations against racial diversity as a valid public school goal, and left those declarations without the profound importance they would have had if they had in fact represented the views of a Court.

“The plurality opinion,” Kennedy said of some of the Roberts approach, “is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto segregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.”

The plurality, he says at another point, “does not acknowledge that the school districts have identified a compelling interest here.” That, he said, was why he would not sign on to the part of the principal opinion that ruled out the pursuit of racial diversity as an educational policy goal. “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue,” he went on. He even persuaded a laundry list of “race-conscious” policies that school districts could validly adopt in that pursuit.

And Kennedy shunned entirely the sentiment of conservative colleagues that the Court should insist and that the Constitution commands that public officials must be “color-blind.” He said: “In the real world, it is regrettable to say, it cannot be a universal constitutional principle.”

To emphasize his departure from the Roberts plurality on key points, Kennedy took the highly unusual step of discussing his concurrence in remarks on the bench. While it has become more common for dissenting Justices to recite from their opinions, it hardly ever happens that a concurring Justice does so.

Would Kennedy have worked so energetically to carve out a separate position had the colleagues in dissent moderated their critique? Perhaps he would have. But it is at least equally plausible that he did not wish to be lumped together with the plurality as a target of the dissents’ most aggressive thrusts of rhetoric. The dissent, it should be noted, is only mildly critical of Kennedy’s specific suggestions of alternative race-related policies that might be used, and that made even more vivid the far stronger language leveled at the Roberts coalition. That the dissent was not lightly to be dismissed is also evident in the efforts that the Chief Justice made to answer it, and, even more, the 36-page opinion Justice Clarence Thomas wrote with the sole aim of fending off the dissenters’ arguments.

The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.

My initial comments relate to Chief Justice Roberts’s and Justice Kennedy’s opinion because (1) together they constitute the holding of the Court and (2) well, frankly, that is all I have been able to read so far.

Tom Goldstein’s comment is certainly correct. Justice Kennedy’s opinion is the controlling opinion for the Court to the extent he does not join the majority. But I think there is far less disagreement between these two opinions then a reading of Justice Kennedy’s opinion would suggest. A review of them also demonstrates that these cases simply had bad facts for the school districts. It is a testament to the skill of the lawyers defending those programs that they were able to win in the lower courts and obtain four votes in the Supreme Court.

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The following comments are from Hans Bader, Counsel for Special Projects, The Competitive Enterprise Institute. He filed an amicus brief for Competitive Enterprise Institute in support of the parents in the Seattle case.

In its decision striking down the race-based student assignment policies used in the Seattle and Louisville schools, which sought to promote “racial balance,” the Supreme Court dealt with school districts that are not currently segregated (indeed, Seattle has never been segregated).

The Supreme Court’s decision was consistent with the 1964 Civil Rights Act, which declares that “’desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.”

While the court’s decision will further limit the use of race to remedy certain forms of “discrimination,” such as unintentional or “disparate impact” discrimination, as I explain below, it leaves unclear exactly when, or how much, race can be used in the school setting for the sake of non-remedial interests like “diversity.”

Interestingly, the justices highlighted the bizarre claims about race made by the Seattle schools, which cast doubt on whether allowing schools to use race will promote racial harmony rather than racial balkanization.

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We’ve finalized our annual statistics for the Term, including justice agreements, opinion tallies, our summary memo, and everything else previously included in the StatPack for the last few weeks. Ben Winograd and Adam Chandler, both of Akin Gump, contributed invaluable research assistance to this entire project.

All 10 components are available for download in one “Super StatPack” by clicking here.

You can also download each piece of it separately:

1. End of Term Summary Memo, principally by Ben Winograd
2. Justice Agreement – All cases
3. Justice Agreement – Non-unanimous cases
4. Visual Representation of 5-4 decisions, principally by Ben Winograd
5. Opinion Tally, principally by Adam Chandler
6. Circuit Scorecard
7. Decisions by Final Vote
8. The Court’s Workload
9. Opinion Authors by Sitting
10. State of the Docket for OT07

UPDATED 6:00pm

Parents Involved v. Seattle School District (05-908) & Meredith v. Jefferson County Board of Education (05-915)
At Slate, Dahlia Lithwick has these initial reactions to today’s opinion in her ongoing conversation with Walter Dellinger and Stuart Taylor weighs in here; Tony Mauro of the Legal Times reports here on the school ruling on a “historic final day of the Supreme Court term”; and Washington Post Staff Writer Robert Barnes reports here that a “splintered Supreme Court today threw out school desegregation plans from Seattle and Louisville, but without a majority holding that race can never be considered.”

Mark H. Anderson has this article (subscription req’d) in the Wall Street Journal on the Court’s decision striking down voluntary integration policies in two school districts and Jess Bravin answers questions on the school assignment decision here at the WSJ.com Washington Wire blog; David G. Savage and Joel Havemann have this article in the LA Times on the ruling declaring “unconstitutional the use of racial guidelines to integrate public schools”; CNN’s Bill Mears reports here on the “bitterly divided” Court’s opinion; Mark Sherman of the Associated Press has this story on the ruling that “left the door open for using race in limited circumstances”; and Peter Schmidt reports here for the Chronicle of Higher Education.

James Vicini reports here for Reuters on the “significant civil rights decision that may affect millions of students nationwide”; Bloomberg’s Greg Stohr has this story on the Court’s ruling that “public school districts can’t try to foster integration by considering race in making pupil assignments”; David Stout reports here for the New York Times; Jessica Blanchard, Christine Frey and Charles Pope have this story in the Seattle Post Intelligencer; USA Today’s Joan Biskupic reports here on the “sweeping decision likely to affect school integration efforts nationwide”; and Mark Walsh has this article (registration req’d) at Education Week on the decision, which “stopped short of prohibiting all consideration of race in K-12 education.”

The NAACP Legal Defense Fund’s SCIntegration Blog has various posts discussing the decision and collecting news coverage and comment, including these thoughts from Professor Samuel Bagnestos; this reaction from Professor Jim Ryan; these comments from Louisville parent Fran Ellers and this post from Nicole Dixon on the immediate aftermath, among others. At Balkinization, Jack Balkin has this reaction to the PICS decision and Kennedy’s concurrence; Mark Graber weighs in here on the ruling and the “good” civil rights movement. Andrew Cohen has this post discussing Kennedy’s concurrence at the WashingtonPost.com’s Bench Conference blog.

Leegin Creative Leather Products v . PSKS (06-480)
Mauro has this article in the Legal Times reporting that “Dr. Miles is dead”; at Bloomberg, Stohr reports here on the High Court’s decision “overturning a 96-year-old antitrust precedent”; the Associated Press has this article on the 5-4 decision; and the Wall Street Journal’s Anderson reports here on the ruling, which “made it easier for manufacturers to demand that retailers sell goods at minimum prices.” Stuart Benjamin weighs in here at Volokh Conspiracy on the antitrust case; at the University of Chicago Law Blog, Randy Picker has this reaction; Peter Lattman of the WSJ.com Law Blog has this post on the opinion; and ACS Blog has this post on the decision that overturns a longstanding precedent.

Panetti v. Quarterman (06-6407)
In the Washington Post, Charles Lane reports here on the “ruling that makes it easier for mentally ill condemned prisoners to contest their death sentences”; LA Times Staff Writer Henry Weinstein has this article on the 5-4 ruling blocking the execution of a mentally ill Texas murderer; the AP’s Pete Yost has this story; Todd J. Gillman reports here for the Dallas Morning News; in the Houston Chronicle, Patty Reinert has this story on today’s decision which overturned a lower court ruling; and Max Baker reports here for the Forth Worth Star-Telegram. Orin Kerr has this initial post and these thoughts on the Court’s new habeas exception at Volokh Conspiracy; Kent Scheidegger of Crime & Consequences weighs in here.

By a vote of five to four, the Court today reversed the Fifth Circuit’s holding that a death-row inmate is competent to be executed notwithstanding his belief that the state of Texas wants to execute him to “stop him from preaching.” In an opinion by Justice Kennedy (joined by Justices Stevens, Souter, Ginsburg, and Breyer) that once again served as a rebuke of the Fifth Circuit, the Court remanded the case for the district court to address petitioner Scott Panetti’s Eighth Amendment claim in light of its opinion. Significantly, the Court declined to establish a rule that would govern all Eighth Amendment competency proceedings, creating a not-insignificant possibility (if the Fifth Circuit past is prologue) that the case could return to the Court in some later iteration. And although it isn’t clear what the long-term precedential effects of the Court’s ruling will be in the competency context, the Court also articulated (albeit almost in passing) a fairly expansive conception of when federal courts may find a state court’s application of a general legal principle “unreasonable” for AEDPA purposes.

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One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.

Here is what is clear from Justice Kennedy’s opinion. First, there is a compelling governmental interest in school diversity that can justify certain uses of race. Op. at 2 (rejecting the plurality’s failure to “acknowledge that the school districts have identified a compelling interest here”); id. at 17 (“A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.”).

Second, and relatedly, the Constitution does not require color-blindness. Op. at 7 (refusing to join the “parts of the opinion by The Chief Justice [that] imply an all-too-unyielding insistence that race cannot be a factor”); id. at 8 (acknowledging Justice Harlan’s dissenting view in Plessy that “[o]ur Constitution is color-blind,” but concluding that “it is regrettable to say, it cannot be a universal constitutional principle”).

Third, direct racial classifications like those in the Seattle and Louisville programs are subject to strict scrutiny and may be employed only after other alternatives are first explored and have failed. Op. at 9 (“[I]ndividual racial classifications employed in this manner may be considered only if they are a last resort to achieve a compelling interest.”); id. at 10 (these programs are unconstitutional because “the schools could have achieved their stated ends through different means”); id. at 16 (in the case of “de facto discrimination,” “[t]he State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here”); id. at 18 (“[M]easures other than differential treatment based on racial typing of individuals first must be exhausted.”).

Fourth, and on the other hand, certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny review and are per se constitutional. Schools may take account of race in such decisions as “site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” Op. at 8. These are “race-conscious measures [that] address the problem in a general way and without treating each student in [a] different fashion solely on the basis of a systematic, individual typing by race” (id.), as distinct from “[a]ssigning to each student a personal designation according to a crude system of individual racial classifications” (id. at 9). These approaches can be employed “with candor and with confidence that a constitutional violation does not occur.” Id.

Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question.

Justice Kennedy thus states that schools may employ not only the “facially race-neutral means” discussed above but “if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component,” an “approach [that] would be informed by Grutter.” Op. at 10. Such a system would “consider[] race as only one factor among many,” whereas the Seattle program “relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings; distance from schools; and race.” Id. at 12. “If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application.” Id. at 12-13. Justice Kennedy continues: “Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classifications.” Id. at 18. See also id. (rejecting “[c]rude measures of that sort”).

The ambiguity exists in Justice Kennedy’s statements that such approaches may be employed “if necessary” and that Grutter would have “some application.” The better view, I think, is that Justice Kennedy would still require as a “first option” the various efforts at increasing diversity (such as school siting) that do not involve the express use of race as a factor in widespread school assignment. If those programs do not succeed or can be reliably shown to be unlikely to succeed standing alone, districts can consider race as one factor among many that look to students as individuals rather than just members of racial groups. Only if that effort fails may the government turn to programs like those in Seattle and Louisville.

The Court issued its combined opinion in No. 05-908, Parents Involved in Community Schools v. Seattle School District, and No. 05-915, Meredith v. Jefferson County Board of Education. Chief Justice Roberts authored the majority opinion and Justice Kennedy joined in judgment. The voting line-up is depicted below: