Loving, Revisited

Mildred Loving died of pneumonia last Friday at her home in Central Point, Virginia. As reporter Jocelyn Stewart wrote in an obituary in the Los Angeles Times, "For marrying the only man she loved, Mildred Loving paid a price: she was arrested, convicted and banished from her home state." She and her now-deceased husband were the couple involved in the United States Supreme Court's 1967 decision, Loving v. The Commonwealth of Virginia. In that case, the court ruled unanimously that Virginia's law banning interracial marriage was unconstitutional.

Yet I will argue here that it is not far-fetched to wonder whether the current Supreme Court would reach the same conclusion in Loving were it on the court's docket anytime soon.
During the tenure of the Warren Court, the justices - for the first time - made the promise of America available to minorities, especially African-Americans. It did so in a litany of cases affirming de-segregation plans and basic voting rights. The Burger and Rehnquist Courts whittled away at some of these broad decisions, but the tide really turned with the ascension of John Roberts as Chief Justice. During the last term and continuing into this year's term, the Court has begun to pull the plug on the basic idea of equal opportunity for all. Two cases, one decided last year and another decided this year, are prime examples of this trend.
In the waning days of the Court's 2007 term, the Court blew a hole through the very idea that children of different races might share the same classroom in the United States. That was the vision enunciated by Earl Warren in 1954 in Brown v. Board of Education. By a 5-4 vote in Community Schools v. Seattle School District Number 1, Chief Justice Roberts turned Brown on its head by electing to see the 14th Amendment's Equal Protection Clause - which was adopted for the express purpose of integrating Blacks more fully into society - as a tool for protecting white students from integration. He literally used the mantra of a color-blind Constitution to strike down voluntary school integration plans in Seattle and Louisville, Kentucky. By interpreting Brown simply as forbidding government classification and separation on the grounds of race, Roberts paid scant attention to the shameful history of slavery. That history, in turn, gave rise to the marginalization and mistreatment of African Americans. This racial schism did not end with the stroke of a pen when the Court ruled in Brown that "separate educational facilities are inherently unequal." In his dissent in Community Schools, Justice Steven Breyer called Robert's reliance on Brown a "cruel distortion of history." So in the name of abiding by the 1954 landmark ruling, the Court effectively made a mockery of its spirit.