1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”
The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”
1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.
In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will “alter the balance” of the Court.
2022—By a vote of 10 to 6 along ideological lines, the en banc Fourth Circuit rules (in Peltier v. Charter Day School) that a public charter school is a state actor subject to the Equal Protection Clause and that the defendant public charter school violated the Equal Protection Clause when it adopted a dress code that required female students to wear skirts, skorts, or jumpers. In dissent, Judge Marvin Quattlebaum observes that “it is hard to discern, much less define, the limits of what constitutes ‘state action’ after the majority’s decision.”
The school’s certiorari petition is pending in the Supreme Court.
2022—Two judges on New York’s highest court dissent from the court’s ruling (in In re Nonhuman Rights Project v. Breheny) that the petitioner Nonhuman Rights Project may not seek habeas corpus relief on behalf of Happy, an elephant at the Bronx Zoo, in order to transfer Happy to an elephant sanctuary.
Judge Rowan D. Wilson posits that “the legal question presented is whether the detention of an elephant can ever be so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should be made available under the common law.” Answering that question yes, he opines that the court below “must undertake a normative analysis that weighs the value of keeping [Happy] confined with the value of releasing [Happy] from confinement,” and he makes clear his view that his balancing test should compel Happy’s release.
Judge Jenny Rivera broadly agrees with Wilson and condemns the “human/nonhuman binary relied upon by the majority.”