The first Monday in October -- the day the new term starts -- is the romantic date in Supreme Court lore, but the last Thursday in June is usually more important. That's generally the day the court issues the remaining rulings of the term and it almost always includes at least one humdinger.
This Thursday had two. One of them you've probably already heard about: By a five to four vote, the court threw out school plans designed to achieve real diversity by making some decisions based on race.
You shouldn't need to ask who were the five and who were the four. It was the exact same split as in the cases we wrote about here on Monday. The New York Times has already condemned the ruling in an editorial called "Resegregation Now." Mark Graber on Balkinization gets at the heart of the ruling:
Today’s opinions in the Seattle school case feature the too usual lectures from conservative justices on the meaning of the "good" civil rights movement, the one which asserted that "the constitution is color-blind.” Of course, neither Chief Justice Roberts nor any other member of the majority were actually members of that “good” civil rights movement. To paraphrase Dick Cheney, they had other priorities at a time when police dogs were being set upon African-American children who dared insist on the right to drink at the same water-fountains as white children. ... They could do so in good conscience because somewhere in the late 1960s, the “good” civil rights movement was replaced by the “bad” civil rights movement, a movement which insists that persons of color be actual as well as pro forma, legal equals.
Graber's use of "opinions" is not a typo. The court got five votes tossing out the particular school desegregation programs at issue, but Justice Kennedy didn't agree with the entire opinion. He issued his own concurring ruling, saying that there are situations where such programs might be okay. Jack Balkin on Balkinization points out that Kennedy's opinion may hold more sway in the long run, since it's the dividing line between two groups of four. As Balkin says, "It's good to be the Swing Justice."
But while the desegregation case grabbed the headlines, and is probably the more egregious ruling, given all the evidence that minority students aren't getting the education they deserve, the court also threw out a 96-year-old precedent in antitrust law, by a vote of five to four. (Yep. The same five to the same four.)
Now I know the very idea of thinking about antitrust cases makes most people want to run for the exits. Antitrust law is insanely complicated and opinions on the subject can be deadly boring. But that doesn't mean it isn't important. This particular case -- Leegin Creative Leather Products, Inc. v. PSKS, Inc. -- is probably going to cost most of us money.
The court upheld the right of manufacturers to set a minimum retail price for their products and to refuse to sell to dealers who want to undercut that price. It overturned a 1911 decision that held that the Sherman Antitrust Act prohibited such agreements, substituting a "rule of reason" allowing quite a lot of wiggle room.
Seems to me that manufacturers already have plenty of control over the retail price when they set the wholesale price -- most retailers can't afford to sell the product at a loss. Of course, some retailers offer incredible deals on one product -- even taking a loss -- to get us in the store to buy others. Now, though, the manufacturer can require them to use their minimum price.
No more bargains for us. If you want a more detailed understanding of why this is a bad ruling, I suggest you read Justice Breyer's dissent.