76

SUPREME COURT OF THE UNITED STATES

No. 93-1823

MISSOURI, ET AL., PETITIONERS v. KALIMA
JENKINS ET AL..

ON WRITE OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE EIGHTH CIRCUIT

(June 12, 1995)

JUSTICE SOUTER, with whom JUSTICE STEVENS,
JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

The Court's process of orderly adjudiction has broken
down in this case. The Court disposes of challenges to
only two of the District Court's many discrete remedial
orders by declaring that the District Court erroneously
provided an interdistrict remedy for an intradistrict
violation. In doing so, it resolves a foundational issue
going to one element of the District Court's decree that
we did not accept for review in this case, that we need
not reach in order to answer the questions that we did
accept for review, and that we specifically refused to
consider when it was presented in a prior petition for
certiorari. Since, under these circumstances, the
respondent school district and pupils naturally came to
this Court without expecting that a fundamental premise
of a portion of the District Court's remedial order would
become the focus of the case, the essence of the Court's
misjudgement in reviewing and repudiating that central
premise lies in its failure to have warned the respond-
ents of what was really at stake. This failure lulled the
respondents into addressing the case without sufficient
attention to the foundational issue, and their lack of
attention has now infected the Court's decision.

No one on the Court has had the benefit of briefing.