The Supreme Court ruling on Michigan’s Proposal 2 makes the fight for affirmative action harder


If you love petitions, the initiative process, and direct democracy, you’ll love the latest U.S. Supreme Court ruling in Schuette.

The Supreme Court didn’t negate affirmative action in its 6-2 opinion in Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (BAMN).

It just let the public know the Court wasn’t really the best place to decide such matters, and it was fine with letting voters figure things out, as they did in Michigan with Prop. 2.

You’ll recall that the Supreme Court ruled in Gratz that the University of Michigan’s race-conscious admissions program violated the Fourteenth Amendment’s Equal Protection Clause. But in Grutter, the Court ruled that the law school’s limited consideration of race in admissions was just fine. To decide this seemingly contradictory two-headed policy approach, Michigan voters took to the polls and approved Prop. 2, an amendment to the state constitution that prohibited public universities from using race in the admissions process.

Although the Sixth Circuit Court of Appeals struck down Prop. 2, the Supreme Court heard the case in October and swung the pendulum back in favor of Michigan’s Prop. 2.

So Prop. 2 holds.

But so do affirmative action programs for now.

Justice Kennedy took the lead, joined by Justices Roberts and Alito. Justice Scalia filed his own concurring opinion, which Justice Thomas joined. Interestingly, the liberal San Francisco native, Justice Stephen Breyer, concurred, making six in favor.

Justices Sotomayor and Ginsburg dissented. Justice Kagan did not take part.

Wrote Kennedy: “Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.”

Kennedy ends his opinion: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.”

Scalia’s opinion was a bit more barbed, beginning with his description of how the court was exploring “the jurisprudential twilight zone between two errant lines of precedent.”

He expressed his disdain for affirmative action, yet concurred that the “battleground for this case is not the constitutionality of race-based admissions–at least not quite. Rather it is the so-called political-process doctrine.”

Scalia concludes: “As Justice Harlan observed over a century ago, ‘our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’ Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”

The surprise among the majority was the liberal Breyer.

Wrote Breyer: “I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution…The Constitution allows local, state and national communities to adopt narrowly tailored race-conscious programs designed to bring greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs…We need now decide no more than whether the Federal Constitution permits Michigan to apply its constitutional amendment in those circumstances. I would hold that it does.”

I’ve often seen Breyer as a bellwether of sorts. That he broke with the standard liberal views of Sotomayor and Ginsburg says a lot.

It’s a big fence.

Justice Sotomayor, in a 58-page dissenting opinion, didn’t see the ruling as narrow at all.

She wrote: “While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process…Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.”

In one key paragraph, Sotomayor contends: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination… we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

The Schuette decision leaves race-conscious affirmative action programs intact. But it’s likely that we will see future electoral battles over state and local propositions, now unfettered by campaign finance limits from special interests.

But will people of color be affirmed or will we see the tyranny of the majority? If it’s the latter, then this will be the 6-2 decision that cleared the way.

Emil Guillermo is an independent journalist/commentator.
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The views expressed in his blog do not necessarily represent AALDEF’s views or policies.
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