Hope, Bowles Notwithstanding

Last Fall, when the school integration cases were fully briefed, I willed myself to believe that the Court would surprise us with a 7-2 decision -- nay, a 9-0 sweep! -- upholding the student assignment plans in both Louisville and Seattle. You realists may scoff, but I say this: Put aside all of the mechanics and details of the two plans for a moment. It is true that opponents of voluntary integration have simplistic, sound-bite formalism on their side -- you can't use race to segregate, they say, so you can't use race to integrate. Period. There is appeal to this kind of position, I admit. But for the reflective, deliberate thinker, the person willing to engage in, wrestle with, and reconcile the history and the relevant case law, such formalism strikes me as hollow and disingenuous. By every measure -- moral, historical, philosophical, and jurisprudential -- it seems to me that the only right and honest interpretation of the Constitution you can reach is one that permits public school systems to adopt voluntary integration policies. Period. Indeed, exclamation mark!

So, my view in the Fall had been that justice would prevail. These cases were way too big, way too important for the Court to fumble at the goal line. It's 2007 -- we are more than 50 years beyond Brown. Even if the Court were to cabin its ruling in a way that greatly limited the ability of public school systems to engage in voluntary integration, I simply could not bring myself to believe that it would deny us even the Pyrrhic victory of some flowery language, right? Justice O'Connor realized the importance lip service in Grutter, the relevant portions of which even Justice Kennedy joined. Surely Justice Roberts (rumored to be the author of the forthcoming majority opinion) is not looking to go down in history as the man who finally put Brown to rest.

Besides, I saw no reason in hanging my head before there was a certain reason to do so. You have to believe. What do those of us standing on the sidelines have at this point, if not hope?

I must confess, the Court is doing all it can to steal even this glimmer hope. Many expected the Court would issue its decision on the voluntary integration cases this past Thursday -- it didn't, but it sure has heck did issue a zinger of a ruling in Bowles v. Russell. A 5-4 decision (usual suspects), Bowles held that a habeas petitioner's appeal, which was filed within the time afforded to him by a federal district court order, was appropriately denied by the Sixth Circuit because, as it turns out, the Federal Rules of Appellate Procedure (Rule 4(a)(6), to be exact) actually allowed him three fewer days to file than the court's order did. Thank you for your notice of appeal, Mr. Bowles; you complied with the order, but we will not be able to afford you any review.

Bowles couldn't have actually held that, could it? Having read the opinions, I cannot quite say that either the facts or the legal analysis gave me much insight into the minds of Justice Thomas and his colleagues in the majority, and what they believed is to be accomplished by denying Mr. Bowles an opportunity to be heard based on his and his lawyers' reliance on a federal district court order. The majority opinion often returned to the idea that it was Congress, not the courts, who created these jurisdictional rules, and thus Congress, and not the courts, who must be petitioned to make them more just. "If rigorous rules like the one applied today are thought to be inequitable," writes Justice Thomas, "Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits" (emphasis mine).

But this abdication of authority -- the suggestion that the Court's hands are tied because Congress and only Congress has the ability to modify jurisdictional requirements -- strikes me as a bit disingenuous when, in the same breath, Justice Thomas dismisses with the back of his hand an argument grounded in the "unique circumstances" doctrine, which could very well have provided the Court a basis for granting relief. After reviewing the case law discussing unique circumstances, he states: "We see no compelling reason to resurrect the doctrine from its 40-year slumber. Accordingly, we reject Bowles’ reliance on the doctrine, and we overrule [two Supreme Court decisions] to the extent they purport to authorize an exception to a jurisdictional rule." Sounds like it was a fielder's choice to me.

In the end, the legal issues raised in Bowles were not very complicated. The real question was where the sympathies of the Justices lie. Justice Souter's dissent summed it up like this:

"The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch."

Intolerable? Yes. Bait-and-switch? You bet. But is it the law? It is now.

You might be wondering what Bowles has to do with voluntary school integration. Well, perhaps (and hopefully) nothing, but for me, the take-away is this: Many had previously speculated that, with Justices Roberts and Alito, there is a new, more solidified and emboldened majority on the Court. I had been reluctant to jump to any conclusions, holding out hope that the experts would be proven wrong. I endured many other of the closely-watched decisions of this term strongly suggesting that my hold-out was futile, but for some reason, it was Bowles that pushed me over the edge. Yes, we are indeed witnessing a shift even further right. George W. Bush has gotten what he wanted. Uncle.

But, that said, until we get the final word on Louisville and Seattle, I shall maintain hope. The promise -- even if not yet the reality -- of racially and ethnically integrated quality public schools has become part of the fabric of this nation, and not without long decades of struggle, sacrifice, violence. Whatever their political stripe, the Justices, I must believe, know this, indeed, lived through this. So, until I'm proven wrong, I'll continue to believe that their opinions will recognize and do justice to this history, and to the future.

Besides, what do we have, if not hope?