The Cost of Compromise by Linda Greenhouse
In his 2011 memoir, “Five Chiefs,” the retired Supreme Court Justice John Paul Stevens offered a mildly eyebrow-raising reflection on Brown v. Board of Education. The landmark school desegregation decision is celebrated not only for its outcome but also for the unanimity that Chief Justice Earl Warren extracted from his wary colleagues. But the price of unanimity may have been too high, Justice Stevens suggested. He observed that the court’s compromise order to desegregate “with all deliberate speed,” rather than immediately, turned into a recipe for hardly any speed at all.
The court’s “belated and somewhat tentative command,” Justice Stevens wrote with reference to the similarly unanimous follow-up opinion known as Brown II, “may have done more to encourage resistance to the clear message contained in Earl Warren’s original opinion than would have a dissenting opinion joined by only one or two justices.” . . .
I’ve been thinking about Justice Stevens’s views on dissent ever since reading Justice Ruth Bader Ginsburg’s solitary opinion two weeks ago dissenting from the court’s affirmative-action ruling, Fisher v. University of Texas. The vote was 7 to 1, with Justice Elena Kagan recused. Justice Anthony M. Kennedy’s majority opinion either did (as most people seem to think) or didn’t (as I believe) raise the constitutional bar for universities seeking to justify taking race into account in their admission policies. . .
Justices Stephen G. Breyer and Sonia Sotomayor, members of the court’s embattled liberal bloc, signed it without comment. Why did Justice Ginsburg, who is also one of the liberals, choose otherwise? And why, in her pithy four-page opinion, did she feel moved to call out her colleagues — not quite in so many words, of course, but unmistakably — as hypocrites?
http://opinionator.blogs.nytimes.com/2013/07/10/the-cost-of-compromise/?hp
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