In 1861, soon after the Civil War began, President Lincoln declared a blockade of the rebellious South. It proved to be one of the North's most effective weapons. Owners of several ships seized by the US Navy sued, claiming that the blockade was illegal, because it was an act of war and Congress had not declared a state of war to exist. In The Prize Cases, the Supreme Court upheld the blockade. Writing for the Court, Justice Grier observed that the the war was "a fact which the Court is bound to notice and to know."
Yesterday, a majority of today's Court turned a blind eye to reality (although Justice Kennedy gave a least a nod in its direction), ruling that school assignment plans in Seattle and Louisville are unconstitutional. The four reactionary members of the court would hold that any consideration of race in school assignment violates the Constitution. They had the gall to cite Brown v. Board of Education in their opinion.
Brown was decided because of a problem--racial discrimination. Its declaration that separate but equal is inherently unequal recognized that the law may appear to say one thing while doing another. Segregated schools were said to be equal; that was the rationale that had been adopted to keep the races apart. But--as the Court recognized in 1954--that equality was false. Yesterday, the majority turned that rationale on its head, saying, in Chief Justice Roberts' words, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," as a justification for striking down measures to secure integration. The Chief Justice is no fool; he must have known that the court's decision would aid, not cure, racial discrimination.
Conservatives have been very clever in using legalisms--that is, legal principles divorced from the context of the real world--to reverse more than half a century of racial progress in this country. In this effort, they have used the separation between private and public actions to their advantage.
When Brown was decided, segregation was enforced by law. Under the 14th Amendment, government action to cause or enforce distinction on the basis of race is unlawful. Traditional Anglo-American law takes a very different view of private action, however. The classic attitude was, as one wag put it,
Thou shalt not kill, yet needst not strive
Officiously to keep alive.
The much-beloved Prof. Clark Byse, of Harvard Law School, described the common law view this way: "Suppose I'm sitting by the river, smoking my cigar, and a baby comes floating by. As long as I don't flick my ashes in baby's face, I have no obligation to do anything." (In some cases, laws have been passed to impose a duty to act in such situations, but they are rare.)
A person's choice of where to live is private, and the perhaps-natural desire to live with people who look the same as we do, or worship in the same church or synagogue or otherwise seem like us (which some might call prejudice) has been left largely unfettered. (When one person won't sell or rent to a person because of race, national origin, religion or the like, government does get involved, even though those may be private choices.) So, we have come to the point where private choices have led to segregated neighborhoods--often more segregated than they were half a century ago, and the courts take refuge behind the concept of color-blindness to preserve the re-segregation of our schools.
It's not quite as simple as that, actually. Back in the '70's, the Supreme Court was faced with the question of whether a federal court could order city and suburban school districts combined in order to achieve integration. The court decided that that was beyond the purview of federal law. How different things would be today had that case gone the other way.
Is segregation "a fact which the Court is bound to notice and to know?" Today, apparently not. But someday, with different judges, the question may be answered differently. Let's hope so.