From the WSJ Opinion Archives

by JAMES TARANTO
Monday, July 2, 2007 1:35 P.M. EDT

Today's Video on WSJ.com: Mary O'Grady on Mexico's disappointing new tax law.

The Vanity of Judicial Activism
Crystal Meredith of Louisville, Ky., wanted her son, 5-year-old Joshua McDonald, to attend a kindergarten close to home. But the school district said no. He would have to attend a school 10 miles away--because of the color of his skin.

Something similar happened to Andy Meeks, a Seattle ninth-grader. His mother sought to enroll him in the Biotechnology Career Academy, a selective government high school. But Andy was refused too--again, because of the color of his skin.

This sort of thing was all too common in America in the middle of the last century--before Brown v. Board of Education and before the Civil Rights Act of 1964. But it's been illegal for more than 40 years.

Or is that four days? These acts of discrimination occurred in 2002 and 2000, respectively, and the Supreme Court held them unconstitutional only last Thursday.

What's really astonishing is that, notwithstanding the clear language of the 14th Amendment, which outlaws racial discrimination, this was a 5-4 ruling, and it prompted wails of outrage from people who claim to favor racial equality, including the dissenters on the court.

That is because in the post-civil-rights era, two competing ideas about discrimination, particularly racial discrimination, have arisen. The "conservative" view is that discrimination is wrong, period. The "liberal" view is that discriminatory means are acceptable in pursuing a noble end.

What differentiates Thursday's case, Parents Involved in Community Schools v. Seattle School District No. 1, from Brown is the intended purpose of the discrimination at issue. In the latter, school officials sought to keep the races apart; in the former, to force them together by ensuring "racial balance" in each school.

Joshua and Andy were rejected because their racial group was overrepresented in the schools they wanted to attend, not because the school was closed to everyone who shared their skin color. Although they were persons of pallor ("white" in Seattle's parlance, "other" in Louisville's), the policies could just as easily have refused admission to black (or, in Seattle, "nonwhite") students.

One may argue that imposing such quotas in the name of racial balance is morally acceptable or even obligatory. Even if one disagrees, as this column does, one must concede that such a practice is less invidious than old-fashioned Jim Crow segregation.

But there is no getting around the fact that it is illegal. From the Reconstruction era to the civil rights era to the present, legislators and voters have enacted laws banning discrimination across the board. When the Supreme Court makes exceptions to these laws--as it did in the 2003 college admissions case Grutter v. Bollinger, and as the four dissenters wanted to do last week in Parents Involved, it is acting in defiance of the law.

The law says you can't discriminate; it doesn't say you can discriminate if five men in robes agree that you are doing so for a worthy purpose. When judges elevate their own policy preferences above the law, they undermine the foundation of America as a nation of laws, not men.

That's why the most striking dissenting statement in Parents Involved was Justice John Paul Stevens's conclusion:

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

There's a lovely irony in Stevens's appealing to the authority of dead white males while styling himself the champion of oppressed minorities. But by invoking the ghosts of justices past, Stevens reveals that his views of the subject are rooted in personal preference and not legal principle.

It's reminiscent of another pronouncement a justice made 15 years ago:

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

That was Harry Blackmun in Planned Parenthood v. Casey, which upheld the "constitutional" right to abort that had sprung from Blackmun's imagination 19 years earlier. Blackmun retired in 1994 and died in 1999.

Stevens is 87 years old. He cannot remain on this court forever either. Like Blackmun in his twilight years, he seems dimly aware that "law" based on the preferences of men is as evanescent as the lives of men. Only principle endures.

Breaking News From 1954
"Color-Blind Schools Set by Court"--headline, New York Sun, June 29

Tapping Tim?
Appearing on "Meet the Press" yesterday, Sen. Pat Leahy of Vermont discussed the National Security Agency's terrorist surveillance program and made either a shocking revelation or a scurrilous charge:

Leahy: What I don't want is this open-ended idea that they had at the White House, until the press found out about it, which would allow, for example, if they didn't like some comment that you made on NBC, they could then go without any warrant, wiretap your phone, check out your bank account, surveil you. Well, we don't want that in America.

Tim Russert: Even if I had no contact with someone overseas?

Leahy: Even if you had no contact with someone overseas under the broad way that they were talking about. . . . I don't want us to ever go back to the situation that we had 30 years ago when we put into place this FISA court, as you called it, where they were wiretapping somebody who disagreed with the government on the Vietnam war. In this case, somebody disagrees with the administration on the Iraq war, under their broad views, you could just go in and wiretap them. This, this is America. This is not a, this is not a dictatorship.

Here is how Vice President Cheney described the program when we interviewed him a year and a half ago:

"This notion [is] peddled out there by some that this is, quote, 'domestic surveillance' or 'domestic spying.' No, it's not. It is the interception of communications, one end of which is outside the United States, and one end of which, either outside the U.S. or inside, we have reason to believe is al-Qaeda-connected. Those are two pretty clear requirements, both of which need to be met."

If the administration really is asserting or exercising the power to wiretap domestic critics, this would be an outrage against civil liberties. But is there any evidence that Leahy isn't just making stuff up?

What's Blown Up, Doc?
We don't have too much to add about the terror attempts in Britain over the weekend, but this caught our attention:

An Iraqi junior doctor and a brilliant neurologist working for the NHS [National Health Service] are among the suspects being quizzed over the series of bomb attacks across Britain, it emerged today.

Others have made the obvious points that (1) this belies the sob-sister stereotype that terrorists are impoverished and desperate, and (2) maybe there's an argument against socialized medicine here.

What occurred to us, though, is that it seems an awful lot of terrorists are physicians. Just off the top of our head, we thought of al Qaeda's Ayman al-Zawahiri and Hamas's Mahmoud Zahar and Abdel Aziz Rantisi.

Then we started thinking about physicians in American politics: Howard Dean, Sen. Tom Coburn, Reps. Ron Paul and Jim McDermott. It occurs to us that all these men would be characterized as either ideologically extreme or principled, depending on your point of view.

Is there something about the mindset of physicians that predisposes them toward political astringency? We don't know the answer but thought we'd throw out the question.

We Have Met the Enemy and He Is Us

  • "Who Are Hamas?"--headline, BBC Web site, Jan. 25

  • "Despite Shin Bet (Israel Security Agency) opposition and per the request of the BBC, the coordinator of government activities allowed a Hamas member who works for the BBC to enter the Gaza Strip last week to assist in efforts to release kidnapped journalist Alan Johnston."--Jerusalem Post, June 27

She's Gotta Be Kidding
"The percentage of Americans who consider children 'very important' to a successful marriage has dropped sharply since 1990," the Associated Press reports:

The Pew Research Center survey on marriage and parenting found that children had fallen to eighth out of nine on a list of factors that people associate with successful marriages--well behind "sharing household chores," "good housing," "adequate income," a "happy sexual relationship" and "faithfulness."

In a 1990 World Values Survey, children ranked third in importance among the same items, with 65 percent saying children were very important to a good marriage. Just 41 percent said so in the new Pew survey. . . .

Virginia Rutter, a sociology professor at Framingham (Mass.) State College and board member of the Council on Contemporary Families, said the shifting views may be linked in part to America's relative lack of family-friendly workplace policies such as paid leave and subsidized child care.

"If we value families . . . we need to change the circumstances they live in," she said, citing the challenges faced by young, two-earner couples as they ponder having children.

Is Rutter really arguing that the workplace has become less "family friendly" since 1990? Does she think the Family and Medical Leave Act of 1993 had perverse consequences?

Just Ask John Kerry
"Trouble Afoot With Flip-Flops"--headline, USA Today, July 2

Power Corrupts
"Politically Connected Electrician Charged"--headline, Philadelphia Inquirer, June 26

'Hmm, Maybe We Ought to Put That Out'
"Fireworks Blaze Stirs Firefighters' Concerns"--headline, San Bernardino County (Calif.) Sun, June 27

Most Likely Eating
"Obese Young Americans Doing Something"--headline, KLTV Web site (Tyler, Texas), June 26

He Left the Audience Hanging
"Inmate Executed Without Delivering Promised Joke"--headline, FoxNews.com, June 26

Justice at Last

When Wrestlers Go Bad in Outer Space
"Male-Female Tag Team Held in Three Jupiter Strong-Arm Robberies"--headline, South Florida Sun-Sentinel (Fort Lauderdale), June 28

She Was a Very Precocious Child
"Lawyer: Ex-Astronaut Didn't Wear Diaper"--headline, Associated Press, June 30

Why Is Arianna Above the Law?
"NY Court: DWI Laws Don't Cover 'Huffing' "--headline, Associated Press, June 27

Her Next Target: Frito-Lay

  • "Michigan Woman Claims Starburst Candies Are Dangerously Chewy in Lawsuit"--headline, FoxNews.com, June 27

  • "CHEETOS brand is the only snack cool enough for Chester Cheetah because he knows 'It's not easy being cheesy.' Whether you grab Cheetos Crunchy, Cheetos Puffs or Cheetos Twisted, prepare yourself for DANGEROUSLY CHEESY flavor."--Frito-Lay.com

That's Easy for You to Say!
"<FEFF><FEFF><FEFF>I Enjoy My Summertime Colle"--headline, Ann Arbor (Mich.) News, July 1

News You Can Use

  • "Paris Hilton and Larry King Provide Little Substance"--headline, Boston Globe, June 29

  • "N.J. Court Says Hangovers Impair Drivers"--headline, Associated Press, June 29

  • "Zimo: Be a Good Human--Don't Disturb Salmon While They Are Spawning"--headline, Idaho Statesman (Boise), July 1

Bottom Stories of the Day

  • "Phone Booth Removal Seen as Community Improvement"--headline, WLWT-TV Web site (Cincinnati), June 27

  • "AFL-CIO Seeks Pro-Union President"--headline, Enquirer (Cincinnati), June 28

  • "Stolen Wheelie Bin Found in Bulgaria"--headline, Telegraph (London), June 28

  • "Delay Sought in Vote on Backyard Trash Pickup"--headline, Advocate (Stamford, Conn.), July 1

  • "W. Windor Council Meets in Orderly Fashion"--headline, Times (Trenton, N.J.), July 2

  • "CIA Spied on Left-Wing Canadians in '60s, '70s: Documents"--headline, CBC.ca, June 29

United for Handouts
On National Review Online, Jack Fowler touts a new transideological coalition:

Opinion magazines--pushed around and swirlied by media giants like Time Warner, which has negotiated and engineered new "periodical" postal rates (due to take effect July 15) that benefit the publishers of Entertainment Weekly and Vanity Fair at the considerable expense of smaller journals such as National Review and The Nation--are teaming up and fighting back.

Fowler reprints a letter to Jim Miller, chairman of the Postal Board of Governors:

As publishers of small magazines of politics and culture, we represent a wide variety of perspectives and ideas. We play an important role in the democratic political culture of this nation. Many of us struggle to make this business successful, and yet we remain committed to the goal of a rich marketplace of ideas. The new rate structure is a crippling blow as it is. We ask that you consider our request carefully and delay the implementation of the rate increase to permit publishers sufficient time to assess the results of the new rate calculator.

And sure enough, it's signed by a wide variety of publications: conservative (NR, The American Spectator), liberal (The New Republic, Foreign Affairs), reactionary (The American Conservative, The Nation), and even UU World Magazine, whatever that is. All are united in the noble pursuit of cheaper postage.

But we noticed one omission from the list: Reason magazine. We were an intern at Reason 20 years ago, and we remember reading in a back issue that this question had come up previously, and Reason had, counter to its own self-interest, argued against discounted postage rates, on the ground that it was opposed in principle to government subsidies.

It seems libertarians are the only ones who don't believe selfishness is a virtue.

(Carol Muller helps compile Best of the Web Today. Thanks to Daniel Goldstein, Grant Burton, Monty Krieger, Scott Wright, Michael Segal, Ed Lasky, Brendan Schulman, Joel Goldberg, Ray Burnham, Don Hubschman, Michael Schefer, John Sanders, Buddy Smith, John Nernoff, Jan Nicholas, Jarret Peritzman, Curt Strubhar, John Kempe, Mark Finkelstein, Patrick Charles, Tim Willis, Charlie Gaylord, Marc Young, Bryan Fischer, Bill Ferris, Gregg Geil, Ross Firestone, Rob Slocum, Tom Dziubek and Alan Jones. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)

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