Supreme Court Upholds Affirmative Action Ban
On Apr. 22 in Schuette v. BAMN, the Supreme Court of the United States held 6-to-2 that a Michigan constitutional amendment ending racial preferences in many aspects of state government does not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
The Fourteenth Amendment was adopted in 1868 after the Civil War. One of its clauses forbids any state from denying any person “equal protection of the laws.” The Supreme Court has repeatedly held that the central purpose of that clause is to end racially discriminatory state laws.
In 2003, the Supreme Court allowed certain racial preferences to continue nationwide in two 5-to-4 decisions concerning admissions at the University of Michigan. Justice Sandra Day O’Connor was the deciding vote in both cases, one of which allowed (but did not require) “reverse” racial discrimination to remedy past discrimination.
Following that decision, in 2006, Michiganders adopted Proposal 2 by a margin of 58–42. It amended the Michigan Constitution to end racial preferences in a wide array of government actions and programs, including college admissions.
The Supreme Court in Schuette upheld this provision today. There was no majority opinion for the Court. Justice Anthony Kennedy wrote the lead opinion for the plurality, which will be the one carrying the force of law for the nation. He was joined by Chief Justice John Roberts and Justice Samuel Alito.
Kennedy writes in this case:
… is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education… that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.
… our federal structure permits innovation and experimentation and enables greater citizen involvement in democratic processes. While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education.
In its more liberal years in the 1960s and 70s, the Supreme Court opened the door to racial preferences. As part of this, in 1969, it began developing the political process doctrine, which by 1982 the Court said allows courts to act where a state’s action poses a risk “of causing specific injuries on account of race,” without any discriminatory intent and when the government is not officially or explicitly discriminating.
Kennedy wrote that the Court’s “broad language” in 1982 “went well beyond the analysis needed to resolve [that] case.” A broad reading of that case subjects to strict judicial scrutiny “any that action [that] makes it more difficult for certain racial minorities … to achieve legislation that is in their interest.”
Kennedy concluded “that reading must be rejected,” noting it has “no principled limitation and raises serious questions” about many other Supreme Court precedents. Such a broad rule “would contradict central equal protection principles.” In shunning “racial stereotypes,” he noted that “the Court has rejected the assumption that members of the same ethnic group—regardless of age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”
Instead, “Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.” Courts delving into such ventures “would result in … inquiries and categories dependent upon demeaning stereotypes.” This would lead to any number “of matters be[ing] foreclosed from voter review or participation.”
Kennedy added that whether racial preferences are constitutional at all was something “not at issue here.” Instead the Court today holds “courts may not disempower the voters from choosing which path to follow.”
“By approving Proposal 2 … Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power,” Kennedy wrote. Citizens can “debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.”
Applying this in the context of race, it “is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this.”
Kennedy was careful to note, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” On that point, he insists, “There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commits this policy determination to the voters.” Although racial preferences may lead to rancorous debate, “Democracy does not presume that some subjects are either too divisive or too profound for public debate.”
Justice Sonia Sotomayor dissented, joined by Justice Ruther Bader Ginsburg. (Justice Kagan was recused from this case.) Sotomayor wrote, “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” She wrote that the majority’s approach today would “wish away, rather than confront,” racial inequality.
Roberts wrote a concurring opinion specifically to rebut Sotomayor: “The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding it does not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court.” Roberts found fault with Sotomayor’s argument. He concluded, “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”
Justice Stephen Breyer—a liberal—provided the sixth vote to uphold Michigan’s provision. He did so on different grounds, writing that the political process doctrine is not violated here because minority participation in the political process is not impaired by Michigan’s amendment.
Justice Antonin Scalia filed an opinion concurring in the Court’s judgment upholding Proposition 2, joined by Justice Clarence Thomas. Scalia began:
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception. It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.
Scalia continued, “Even taking this Court’s sorry line of race-based-admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?” Scalia noted that the Court has repeatedly instructed government to do everything possible to implement race-neutral policies. “Respondents seem to think this admonition was merely in jest,” he says.
Scalia also cited one of Thomas’ previous opinions and commented, “Never mind that it is hotly disputed whether the practice of race-based admissions is ever in a racial minority’s interest.” He further noted that Supreme Court precedent requires that if any policy was deliberately designed to benefit minorities, “we would hold the policy unconstitutional.”
All that said, Scalia and Thomas noted that this case turns on the political process doctrine. Discussing the 1969 and 1982 cases, they asserted those cases are “contrary to our traditional equal-protection jurisprudence [and] should be overruled.” The doctrine begins by having courts take a “scattershot” approach to determining if there is a “racial issue,” and if so, “involves judges in the dirty business of dividing the Nation into racial blocs.” Scalia and Thomas opined, “No good can come of such random judicial musing.”
They criticized the doctrine’s underlying concepts, that the Equal Protection Clause “protects particular groups” at the expense of others. To the contrary, they insisted, the relevant provisions in “the Constitution protects persons, not groups.”
This case represents a significant step toward the original meaning of the Fourteenth Amendment, one that conservatives will cheer and that President Barack Obama will surely criticize. How much further the current membership of the Supreme Court is willing to go is anyone’s guess.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.