Reversals.(The Talk of the Town)(Supreme Court's decision on the case of racial discrimination in community schools)

George W. Bush, whose father was often accused of being too cautious and incremental by conservatives, came into office six years ago with an ambition to remake nearly everything about American government. In some cases, like Social Security and immigration, he hasn't been able to get the big changes he wanted. In others--Iraq, tax cuts, civil liberties, the environment, education--it seems clear that his successor, whoever it will be, will have to spend a good deal of time undoing what was supposed to have been Bush's legacy. But the President has achieved one wholesale change that will likely endure for a generation: the construction of a distinctly right-wing Supreme Court.

Just before the end of the past term, the Court issued a decision, written by Chief Justice John Roberts, that signalled a complete departure from more than half a century of jurisprudence on race. The case is called Parents Involved in Community Schools v. Seattle School District No. 1, and it addresses a legal challenge to two city school systems--Seattle's and Louisville's--for consciously trying to achieve racial integration in assigning students to particular schools. Roberts, in his decision, is almost reverential toward the last major Supreme Court decision on race, which in 2003 upheld the University of Michigan Law School's use of race as a factor in admissions. But the thrust of his argument--"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"--makes it impossible to imagine that he would have joined the majority in the Michigan case had he been on the Court at the time.

Justice Clarence Thomas, who dissented in the Michigan case, wrote a concurring opinion in the Parents Involved decision that is far more confrontational than Roberts's, and lays out once again his long-held view of race and the courts. We have a "color-blind Constitution," he asserts, even though the Supreme Court refused to recognize this until its monumental, unanimous decision in Brown v. Board of Education, in 1954. The essence of Brown, Thomas believes, is an absolute prohibition on taking race into account for any reason. "What was wrong in 1954 cannot be right today," he writes.

The Parents Involved decision--and, indeed, nearly the whole modern history of Supreme Court decision-making on race, including Brown--rests on one resonant passage in the Fourteenth Amendment to the Constitution, which says, "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." But, as a matter of history, the idea that the amendment was meant to make the country "color-blind" is wrong, and wrong in a way that is instructive for people thinking about American race relations today.

Within a few months of the end of the Civil War, most of the Southern state legislatures had reconvened and enacted "Black Codes" that returned blacks to a condition almost indistinguishable from slavery, and horrifying white-on-black violence had broken out across the region. The Fourteenth Amendment, proposed by Congress in 1866, was meant to insure the safety and the basic rights of the Southern states' black residents. But in passing it Congress explicitly decided not to give African-Americans a federally guaranteed right to vote--that came an election cycle later, with the Fifteenth Amendment--and nobody thought that it would lead to integrated public schools or facilities. Black and white citizens ...