It was equally clear that the outcome of the cases, from Seattle and Louisville, hangs on the vote of Justice Anthony M. Kennedy. Some of Kennedy's comments from the bench Monday were ominous for the school districts. But if Kennedy views Brown in the proper perspective, he will provide a fifth vote to allow school districts, including the Los Angeles Unified School District, to experiment with ways to bring children of different races together in the classroom.
Brown vs. Board of Education, of course, was the 1954 case in which the court ruled that Topeka, Kan., and several Southern states had violated the 14th Amendment's guarantee of "equal protection of the laws" by operating separate schools for whites and blacks. Yet wrapped inside that seemingly straightforward result was a riddle. Were segregated schools wrong because they violated the principle that pupil assignments must always be "colorblind," or because they took race into account for a malign purpose: to separate "superior" whites from "inferior" African Americans?
Four conservatives on the Supreme Court seem wedded to the first view of Brown. In their view, once the vestiges of state-sponsored segregation are remedied, schools may not engage in what Chief Justice John G. Roberts Jr. has called the "sordid business [of] divvying us up by race."
But for the court's four liberal justices, Brown wasn't primarily about abstract colorblindness. Rather, it was about giving force to the 14th Amendment, which was intended, as Justice Stephen G. Breyer noted Monday, "to take people who had formerly been slaves and their children and make them full members of American society. And part of that was that the state couldn't insist that they go to separate schools."
Breyer has the better of the argument. Taking account of race to bring children of different backgrounds together is fundamentally different from using race to keep those children apart. Is there a ray of hope that Kennedy, the likely swing vote in these cases, will agree?
At several points Monday, he seemed to be endorsing his conservative colleagues' colorblind approach. At other points, he signaled that he recognizes that efforts to integrate schools are not the moral or constitutional equivalent of pre-Brown school segregation. In this, as in so many other cases, what Kennedy decides may well dictate what the court itself does.