Many have weighed in on the school desegregation cases, and their resolution, of course, is not a business subject. But it is worth remembering that these cases have never solely been disputed on substantive values, but also on slightly more anodyne questions of judicial competence. This is because the remedies for desegregating school districts depended on judicial supervision – and in some ways they required judges and lawyers to play the roles of administrators of ad hoc agencies. Parts of two opinions in the cases reminded me of that debate, which isn’t just about school desegregation, but applies to all receiverships, structural reform injunctions, and other places where what some have called destabilization rights might come into play.

Justice Breyer, in dissent, lauded the accomplishments of this brand of litigation-driven administration. In his view, “the extensive and ongoing efforts of two school districts to bring about greater racial integration” were directly related to their eras of either real or threatened judicial supervision. “Louisville began its integration efforts in earnest when a federal court in 1975 entered a school desegregation order. Seattle undertook its integration efforts in response to the filing of a federal lawsuit and as a result of its settlement of a segregation complaint filed with the federal OCR.”

Justice Thomas’s views hearken back to the concern that judicial oversight in these areas became overweening and never-ending, or an “inflated role for the Federal Judiciary” conferring “on judges the power to say what sorts of discrimination are benign and which are invidious.” Perhaps for this reason, “remedial measures geared toward such broad and unrelated societal ills have no logical stopping point, and threaten to become ageless in their reach into the past, and timeless in their ability to affect the future.”

You get the idea. It’s a different thing for a court to exercise ongoing supervision over anything – and it looks startlingly different from what you do on the other days of the week if you’re an appellate judge and you’re asked to review that sort of supervision. But this isn’t to say that judicial administration can’t point to a signal series of accomplishments as well. It’s my suspicion that the memories of the costs and benefits of the judicial supervision era of schools contributed something to the way the judges analyzed the post-supervision plans yesterday.

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