Tackling Affirmative Action: SCOTUS examines Michigan’s ban

Luke WetterstromOn April 22, the Supreme Court upheld Michigan’s constitutional ban on affirmative action in a 6-to-2 decision. The case brought with it an unusual display of personal conflict among the justices, indicative of the emotional force on each side of this important issue.

The constitutional ban in question was adopted by Michigan in a 2006 referendum. Proposal 2 of the referendum considered an amendment to the State Constitution that would bar public institutions of higher learning from granting “preferential treatment” on the basis of race when considering applicants for admissions. Voters approved the measure by a 16-point margin, fifty-eight to forty-two. The Coalition to Defend Affirmative Action filed a lawsuit claiming that the amendment violates the Equal Protection Clause of the United States Constitution. The organization argued that the amendment unconstitutionally prohibits citizens from proposing programs to increase opportunities for minorities to attend Michigan’s colleges and universities.

The United States Court of Appeals for the Sixth Circuit struck down the amendment on such reasoning. The State of Michigan appealed to the Supreme Court, claiming that the amendment did not violate the Equal Protection Clause solely because it is “racial in nature.” The state argued that overturning the ban was an undemocratic exercise of power, overruling the will of Michigan’s voters.

A majority of the Supreme Court agreed. Justice Kennedy wrote the majority opinion, framing the case as not primarily concerning affirmative action, but rather democracy. He argued the case “is not about how the debate about racial preferences should be resolved. It is about who may resolve it… The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow.”

Voting with Kennedy, Justices Thomas and Scalia wrote a concurring opinion articulating the view that the court should have gone farther in limiting all cases of affirmative action. The opinion suggested that affirmative action should only be used as a remedy for intentional racial discrimination, not as a remedy for programs that incidentally produce disparate outcomes for different racial groups. Justice Breyer gave a sixth vote to the majority, although he argued for upholding the amendment on much narrower grounds. Writing in a separate concurring opinion, Justice Breyer claimed the measure was written so as to only be applicable to admissions decisions based solely on race.

Justice Sotomayor filed a passionate dissenting opinion in the case, arguably the most significant of her career on the court. Sotomayor has a deep personal history with affirmative action, writing in her best-selling memoir My Beloved World that she believes it gave her the opportunities for the remarkable success she has enjoyed. She lamented the decision as ignoring the country’s long history of systemic racial oppression, and argued that it is a step in the direction of propagating the consequences that stem from that history.

Sotomayor’s dissent was especially notable for its tone. It departed from the collegiality typically found in conflicting opinions, taking a personal jab at Chief Justice Roberts. Roberts, in a 2007 case also dealing with an issue of race, concluded his majority opinion by writing, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Sotomayor put her own twist on this now-famous line, writing, “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.”

This prompted a response from the Chief Justice, who took the unusual step of filing an additional concurrence, seemingly to defend himself from Sotomayor’s personally charged dissent. He writes, “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.” Such displays of personal animosity among Justices are rarely seen, even in the most controversial issues to come before the court.

This case, as Justice Kennedy noted in his opinion, did not directly address the constitutionality of affirmative action programs.  However, this decision provides an avenue for opponents of affirmative action to combat the practice. Statutory bans can be overturned through a much simpler process; constitutional amendments, while varying from state to state, are generally much more entrenched in each state’s respective legal framework.

The case marks the latest phase of the lengthy and emotional struggle over the appropriate role of affirmative action policies in our nation’s colleges and workplaces. The court, unsurprisingly, is reluctant to make broad rulings on an issue being debated so fiercely in the public arena. However, the Justices will undoubtedly have more to say on this issue in coming years.

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