Red Judges versus Blue Judges in Parents Involved: A lesson for the Canadian Judiciary?

The recent United States Supreme Court ruling in Parents Involved in Community Schools, Petitioner v. Seattle School District No. 1 et. al. is among the most politically contentious in recent memory. Supporters are calling it a well needed course correction in American education policy. Critics believe it is a move towards resegregation and the dismantling of affirmative action. Even the decision itself is awash in the sort of passionate political discourse – both the plurality and dissent identify one another as agents of segregation (see p. 91, 191) – that is frequent in the legislature and executive branches, but less so in the judiciary.

Parents Involved is the product of two separate actions, one by a parent’s association against a Seattle school board and the other by a parent against a school board from Jefferson County. Both complainants charged that the school board’s use of racial classification to make school assignments, (with an aim to achieving racial balance in their schools) was unconstitutional, a claim ultimately supported by a narrow plurality of judges in the Supreme Court.

Writing for the majority, Roberts CJ held that school assignment plans that classify students on the basis of race – irrespective of whether the purpose of such race-based classification is to redress racial inequality – were unconstitutional insofar as they deny students equal protection under the law. Although Roberts CJ admitted that “remedying the effects of past discrimination is a compelling interest” (with specific reference to a “compelling government interest” test articulated in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132 L. Ed. 2d 158.), (p 6) he added an important qualification: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (para 541).

In a move that has enraged civil rights figures across the United States, (not to mention members of the Supreme Court itself), Roberts CJ. relied on a seminal desegregation case, Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, to justify forbidding the use of racial classifications by school boards seeking to ‘racially balance’ public schools. Brown, which provided the legal basis for the broad-based desegregation that occurred in the United States between the late 1950s and early 1970s outlawed required school districts to determine admission to public school on a non-racial basis.

Although, in a very literal sense, Roberts CJ’s reliance on Brown seems legitimate, Justice Stevens, writing in dissent, observed that “there is a cruel irony in the Chief Justice’s reliance on [the Supreme Court] decision in Brown v. Board of Education.” (p 189). The thrust of Stevens J’s objection in this regard is that whereas Brown sought to limit the use of racial classifications in order to promote integration in the schools, the effect of Parents Involved will be to imperil such integration. (p 181-182).

Breyer J’s dissent was even more critical. Like Stevens J, he likened the equating of Topeka Kansas in the 1950s, (the setting of Brown) with present-day Jefferson County and Seattle to “a cruel distortion of history.” (p. 303) Additionally however, Breyer J. emphasized the debilitating effect that Parents Involved will have on the ability of school boards to combat de facto segregation. Prior to Parents Involved, Breyer J. explained, “school boards had available to them a full range of means to combat segregated schools” in the case’s aftermath he continued, “they do not.” (p. 301) To support his assertion, Breyer J. relied on a 1987 study of efforts to promote desegregation in 125 school districts which revealed that a majority of strategies employed involved the explicit use of race-based considerations. (p 288) From the perspective of the dissenting judges then, Parents Involved represents a serious limitation if not wholesale abandonment not only of Brown but of integration altogether.

Leaving aside the (profound) implications of the case on American society, Parents Involved is significant in that it betrays the existence of an ideological cleavage in the U.S. Supreme Court that is roughly parallel to the left-right/red-blue divisions that exist in U.S. politics. This is perhaps best illustrated by considering the correlation in Parents Involved between the legal arguments of particular judges and the ideological temperament of the Presidents responsible for their appointment. The majority decision was authored by the newly appointed Chief Justice Roberts (Bush Jr.), whose conservative ally in the court, Thomas J, (Bush Sr.) chipped in with a concurring judgment framed against an impassioned dissent by Breyer J. (Clinton). A less vitriolic dissent came from Stevens J., who was appointed by the more ideologically tepid President Gerald Ford. In fact, the only remotely anomalous decision came from the Ohio (think swing state) of the court Justice Kennedy, who concurred only in part, (but nevertheless permitted the plurality to hold).

Justices that sit on the bench of the Supreme Court of Canada are not, (like their American counterparts), readily reducible to a particular political party or ideology. In fact, the most recent appointee of the Supreme Court of Canada, Justice Rothstein, was short-listed by the Liberal government, and subsequently appointed by the incoming Conservatives . Although it remains to be seen whether Rothstein will take a more conservative stance as compared with the rest of his colleagues (all of whom were Liberal appointments), by no means does he appear, at present to be serving at the pleasure of Prime Minister Harper.

Significantly however, Rothstein J.’s appointment was punctuated by a shift towards the American model. The newest Supreme Court Justice was questioned by a committee comprising mostly of members of Parliament in a televised hearing not unlike the Congressional hearings for Supreme Court candidates that occur in the United States. To be sure, the Rothstein hearing lacked the political fireworks of the American Congressional hearings for either Roberts CJ, or Alito J., both of whom were appointed to the U.S. Supreme Court at around the same time as Rothstein J. Nevertheless, there has been considerable objection to the incorporation of Parliamentary hearings into the judicial selection process for Supreme Court judges. The Canadian Bar Association for example, while admitting that the public hearings for Rothstein J. were a “success,” expressed concern that such Parliamentary hearings could easily “slide down the slippery slope in the future with harder, more partisan and political motivated questions.”

Although the CBA’s ambivalence is not without reason, there is one feature in the Canadian legal system (not found in the United States) that will arguably shield the Canadian court from the sort of politicization that is rampant south of the border. This is the existence of dialogue between the Supreme Court and Parliament. In Canada, the word of the Supreme Court is not actually supreme. As Peter Hogg has famously argued, Parliament is not wholly bound by the Supreme Court. In the courtroom the government can justify infringements under section 1 of the Charter. Failing that, it has the option of altering unconstitutional legislation instead of scrapping it. In the event that Parliament is still dissatisfied, it can choose to invoke s. 33 of the Charter, the notwithstanding clause. The implication of this is, as Professor Hogg and others have explained, that Canadian judges are more insulated from partisan politics then their American counterparts as their judgments are not inalterable by other political actors.

Although dialogue should allay some of the concerns expressed by the CBA and others, Parents Involved, nevertheless offers an ominous warning against placing judicial appointments within the reach of partisan politics. That Justice Rothstein had approval across party lines is not to say that the next Supreme Court Justice will not be appointed in a more contentious political environment.