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Chapter 16. The Decisions from the Supreme Court, 1979–80
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Chapter 16 The Decisions from the Supreme Court, 1979-80 Waiting and Hoping There was nothing to do but wait. The members of the Court usually cast their votes on a case at the first conference following argument, but the results of such conferences rarely leaked out. We had no idea how the justices had voted, who had been assigned to write the majority decision, or what other cases and legal challenges might be affected. The only certainty was that the final decisions in the Dayton and Columbus school cases would once again be the last announced by the Court in the term. That meant the wait would be long and agonizing. One bright moment broke the spring's discontent. On the twenty-fifth anniversary of Brown at a reception for six hundred civil rights leaders in the East Room of the White House, President Carter announced the appointment of Nate Jones to fill the Ohio vacancy on the Sixth Circuit Court of Appeals left by the retirement of Judge Peck. The nomination of the NAACP general counsel signaled the president's official support for the principles of Brown at the end of one critical decade and the beginning of another. Jones had earned this just reward from the president; the Supreme Court would determine whether his legal challenge would survive his tenure at the NAACP. Other days that spring were not so bright. For example, Nina Totenberg, the informed Supreme Court expert of National Public Radio, invited Bill Taylor to appear on a panel show to commemorate Brown's quarter century. Taylor spoke of the promise of Brown and his hope that the proof of discrimination in Dayton and Columbus would compel the Court to reaffirm the principles of Swann and the Denver decision; but Totenberg predicted that the Court would just halt desegregation in order to get out of the busing thicket. On another occasion, Taylor, Ken Clark, and I were invited to participate with about fifteen others in a silver anniversary of Brown for the National Academy of Education sponsored by HEW's assistant secretary for education. The session turned into a divisive debate about the meaning and relevance of Brown. Neoconservatives touted ethnicity, separatists and pragmatists argued for the need to make the best of segregation, some academics ignored their own findings of discrimination as the cause of urban segregation, and integrationists argued for a unified, multiracial, multicultural society. The moderator of this group even threatened to resign his commission to end the squabbling at one point, and his final summary of the groups' diverse views could only reflect the wide divisions. As the first weeks of June passed without a decision, the wait became 375 376 Beyond Busing intolerable. On each day that the Court was scheduled to hand down opinions, Chachkin dutifully attended so that he could broadcast the news to Jones and his co-counsel scattered across the country. Chachkin was joined in the Supreme Court vigil by Sam Porter, the Columbus board's attorney, who flew in from the midwest. Some counsel avoided the phone and the radio out of fear of bad tidings; others stayed by the phone and the all-news radio stations to get the verdict as soon as possible. As June drew to a close without a decision, an informed court-watcher from the media passed the rumor to Bill Taylor that Rehnquist was writing the opinions for the Court in both school cases to restrict desegregation by giving school authorities immunity from any acts of intentional discrimination other than the most recent. If true, the news meant defeat, and the only remaining issue would be the depth of the setback. Chachkin tested the gossip against the only available facts. He analyzed the opinions already issued by the Court from the two weeks of oral argument during which the Court heard the two school cases; he found that only Justice White had written none of the majority opinions, while Justice Rehnquist had already written two-probably his full share. Chachkin surmised that White was writing the opinions for the Court and renewed our hope. June ended on a disheartening note for the NAACP: a majority of the House of Representatives signed a "discharge petition" requiring the Judiciary Committee to stop bottling up Representative Mottl's antibusing amendment and to permit a vote in the full House on the explosive proposal. Although a two-thirds vote was needed to send the amendment on to the Senate, Don Edwards, chairman...