On April 20

On this day in ...
.... 1971, in Swann v. Charlotte-Mecklenburg Board of Education, the U.S. Supreme Court rejected the position of the Nixon Administration and unanimously held that the Constitution permits busing of schoolchildren as a means to eliminate the vestiges of de jure segregation. (credit for photo of "the first African American to attend an integrated school in Charlotte") In an aspect of the judgment that appeared more important to The New York Times' reporter than the holding applicable to the North Carolina school district at bar, Chief Justice Warren E. Burger's decision for the Court

excluded 'de facto' segregation of the North from today's ruling by declaring, 'We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, with out any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree.'

Relying the Swann precedent in their dissents in the 2007 Seattle Schools case were Justices Stephen Breyer and John Paul Stevens, the latter of whom celebrates his 90th birthday today.

(Prior April 20 posts are here, here, and here)

Pretty in Pink

Scholars of constitutional and comparative law know well the story told by U.S. Justice Anthony M. Kennedy in Lawrence v. Texas (2003): in Bowers v. Hardwick (1986), then-Chief Justice Warren E. Burger was wrong to base his conclusion that the Constitution's Due Process Clause permitted criminal punishment of same-sex intimacy on the premise that such punishment was embedded in "Western civilization." Burger erred, Kennedy wrote, for the simple reason that by 1986 not only Britain, but also the European Court of Human Rights, had outlawed such punishment. Continuance of that trend among Western countries was cited as further support for a similar holding in Lawrence.
Preceding the ECHR's decision in Dudgeon v. United Kingdom (1981) had been a hard-fought battle in Northern Ireland, home to the statute that the Strasbourg Court rejected. Leader of efforts to retain criminal punishment there, notwithstanding abolition in Britain, was a political firebrand of a minister, Ian Paisley, who rallied crowds with this cry: "Save Ulster from Sodomy!"
Paisley remains political, having won the title of 1st Minister of Northern Ireland earlier this year. But he lost the Dudgeon battle: Free Derry Corner, a decades-old landmark, boasts a fresh coat of pink paint in recognition of this month's Pride celebration in Northern Ireland's 2d largest city. And an attempt to revive the old cry brought "thousands" to a Pride march in Belfast, its capital city. (photo by Peter O'Neill)
An aside on comparative constitutionalism: Though it eventually caught up with doings in Britain and Ireland, the U.S. Supreme Court neglected even in 2003 to give precise note to similar efforts by lawmakers elsewhere in Europe. Indeed, as this Le Monde article marking the 25th anniversary of those efforts indicates, France too had taken steps well before Burger put pen to paper in Hardwick.