The Court and De-Segregation

A quick follow-up to yesterday’s post:

• Things do not, alas, look good for the de-segregation side in yesterday’s cases. With Alito replacing O’Connor, the only chance was Kennedy, who was extremely hostile, although Lithwick thinks that he’ll try to split the baby for future cases: “He will add that he looks forward to some future hypothetical case in which some school district somehow remedies racial imbalances without accounting for race.”
• I would say that Patterico has climbed Originalism’s Ladder, except that not surprisingly he can’t be bothered to make a constitutional argument at all. I actually think that Publius is being too generous to such arguments when he says that “I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn’t have even conceived of such policies.” The Freedman’s Bureau, for example, seems to me a classic race-conscious remedy. So, really, I think affirmative action is like Brown: if originalism has any connection to concrete historical meanings, there is no originalist justification for striking the programs down. (Those interested in the nitty-gritty should see Michael Klarman‘s definitive takedown of claims that Brown can plausibly be defended in originalist terms.) And if all originalism means is that principles must be applied at a high level of abstraction, I’m not sure why we can ignore 19th century conceptions of education and distinctions between social and civil rights, but we have to remain bound to 19th century conceptions of “commerce.” To the extent that originalism has any content at all, the choice is between Brown and originalism; myself, I’m going with the former. But once you’ve reduced originalism to these kinds of broad abstraction, there’s simply no good reason to treat racial classifications used to ossify apartheid and racial classifications used to dismantle segregation as being equivalent. It is, regrettably, virtually impossible to remedy past segregation without being conscious of race, and I see no reason why the Seattle and Louisville program’s aren’t “reasonable.”