Discussion:
Justice Powell v. Vanilla Suburbs
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Mad Bad Rabbit
2006-10-19 07:10:11 UTC
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"Lewis Franklin Powell, Jr. (September 19, 1907 - August 25, 1998)
was an Associate Justice of the Supreme Court of the United States. He
developed a reputation as a judicial moderate, and was known as a
master of compromise and consensus-building. [...] Powell served from
January 7, 1972 until June 26, 1987, when he resigned. Powell compiled
a decidedly moderate record on the Court, cultivating a reputation as a
swing vote with a penchant for compromise."

As we all know, the Seventies were much too sedate, so let's have him
swing the other way on the following 5-4 cases early in his term:

1. San Antonio Independent School District v. Rodriguez

School-financing systems based on local property taxes are an
unconstitutional violation of the Fourteenth Amendment's equal
protection clause.

2. Milliken v. Bradley

Courts may order busing across school district boundaries to enforce
desegregation.

In the short term the latter will probably lead to violence and both
will lead to calls for Constitutional amendments; but those will
probably die along with the ERA.

In the longer term, there is suddenly a lot less incentive for "white
flight" to the near suburbs, since kids will get bused back to the
inner-city anyway, and since the inner-city districts now must get the
same funding level as suburbia. OTOH, so will rural districts which may
be out of reach of busing.

So, will this lead to earlier gentrification plus a sharp rise in
private religious or charter school attendance? Or will it lead to even
further flight to master-planned communities in the rural exurbs?

--
| >;K
Lee Ratner
2006-10-19 10:10:49 UTC
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Post by Mad Bad Rabbit
In the longer term, there is suddenly a lot less incentive for "white
flight" to the near suburbs, since kids will get bused back to the
inner-city anyway, and since the inner-city districts now must get the
same funding level as suburbia. OTOH, so will rural districts which may
be out of reach of busing.
So, will this lead to earlier gentrification
No, I don't think so. Suburbinzation was going on for so long at
this time that two Supreme Court decisions are not going to change it.
You still have much more room in the suburbs than you do in the cities.



plus a sharp rise in
Post by Mad Bad Rabbit
private religious or charter school attendance?
I don't think charter schools existed in the 1970s. I think you
mean non-religious private schools. It might, especially in the South,
but I don't think it will be that record breaking.

Or will it lead to even
Post by Mad Bad Rabbit
further flight to master-planned communities in the rural exurbs?
No.
David Tenner
2006-10-19 16:19:44 UTC
Permalink
Post by Mad Bad Rabbit
2. Milliken v. Bradley
Courts may order busing across school district boundaries to enforce
desegregation.
Actually, I think that Stewart might be more likely to go the other way in
*Milliken* than Powell. Note that Stewart wrote a concurring opinion in
*Milliken*, emphasizing the narrowness of the decision and the fact that
"This is not to say, however, that an interdistrict remedy of the sort
approved by the Court of Appeals would not be proper, or even necessary,
in other factual situations." http://laws.findlaw.com/us/418/717.html
Powell, while he had criticized the "de jure/de facto distinction," had
already shown some reservations about excessive use of busing in 1973 in
*Keyes v. Denver*: "The single most disruptive element in education today
is the widespread use of compulsory transportation, especially at
elementary grade levels. This has risked distracting and diverting
attention from basic educational ends, dividing and embittering
communities, and exacerbating, rather than ameliorating, interracial
friction and misunderstanding. It is time to return to a more balanced
evaluation of the recognized interests of our society in achieving
desegregation with other educational and societal interests a community
may legitimately assert." http://laws.findlaw.com/us/413/189.html

The problem with a 5-4 pro-interdistrict-busing decision in *Milliken* is
that one of the justices in the majority--Douglas--would soon leave the
Court. I agree with Mike Stone's suggestion at
http://groups.google.com/group/soc.history.what-if/msg/982197d8d32735fc
that Ford would be looking for a replacement Justice much more likely to
support an overruling of *Milliken* than Stevens would be (admittedly
Stevens was considered a moderate conservative at the time but I don't
think that even then he would have been considered a sure vote to overrule
a pro-busing decision in *Milliken*). One possiblity: former
Congresswoman Martha Griffiths, a Democrat and a liberal on feminist
issues but a conservative on crime and busing (she had represented a
mostly white district in northwest Detroit). That way, Ford gets to make
history by appointing the first woman to the court. (See
http://groups.google.com/group/soc.history.what-if/msg/e15831b6aa275ace
for some evidence that there had been talk of Nixon appointing Griffiths
to the Court.) It would not be necessary for a subsequent Supreme Court
to overrule *Milliken* at once--it could "distinguish" it to death.

I also agree with Mike Stone that there are likely to be effects on the
1976 presidential election. (There are also *some* effects on the 1974
Congressional election, but probably they are not too serious outside of
Michigan.) Ford carried Michigan, anyway, but if there is *Milliken*
based litigation in such close states as Ohio, Wisconsin, and Mississippi,
it could cost Carter those states and therefore the election. That is
assuming that Carter wins the Democratic nomination, anyway; with a
diferent *Milliken*, people like Jackson and Wallace might cut into some
of Carter's conservative support. This just might lead to Jackson being
nominated (remember that in OTL Jackson won the Massachusetts and New York
primaries, and while he lost the Pennsylvania primary to Carter by twelve
points (37-25) some *Milliken* related litigation in Philadelphia or
Pittsburgh might have been enough to change the result) but more likely
leads to Udall or another liberal being nominated thanks to a greater
fragmenting of the center-right vote in the primaries. If Carter tries to
avoid this danger by taking a stronger anti-busing position, he loses some
of his black and liberal support. (Conceivably, this alt-*Milliken* could
also lead to Reagan beating Ford in the Republican primaries, but I think
that Ford will take a hard enough line on busing to avoid much damage.)
Post by Mad Bad Rabbit
In the longer term, there is suddenly a lot less incentive for "white
flight" to the near suburbs, since kids will get bused back to the
inner-city anyway, and since the inner-city districts now must get the
same funding level as suburbia. OTOH, so will rural districts which may
be out of reach of busing.
As I noted elsewhere, racially-motivated white flight by itself cannot
explain the declining populations of central cities and the growth of the
suburbs: "Minneapolis went from 521,718 people in 1950 to 434,400 in 1970
and 370,951 in 1980--a loss of almost thirty percent of its population in
thirty years, while the suburbs burgeoned--even though it has never had a
very large black population compared to other major northern cities."
http://groups.google.com/group/soc.history.what-if/msg/bfa4521cab8052cb

And with or without *Milliken*, by the late 1970s inner suburbs were
already starting to experience stagnant or even declining population
figures, and the big growth was already in the more distant suburbs.
--
David Tenner
***@ameritech.net
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