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
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
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.