SCOTUS GETS ONE RIGHT: upholds Michigan’s ban on affirmative action in college admissions
The Supreme Court on Tuesday upheld Michigan’s ban on using race as a factor in college admissions.
The justices said in a 6-2 ruling that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.
Justice Anthony Kennedy said voters chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment.
Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy said.
In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically. “But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent.
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At 58 pages, Sotomayor’s dissent was longer than the combined length of the four opinions in support of the outcome.
Justice Elena Kagan did not take part in the case, presumably because she worked on it at an earlier stage while serving in the Justice Department.
In 2003, the Supreme Court upheld the consideration of race among many factors in college admissions in a case from Michigan.
Three years later, affirmative action opponents persuaded Michigan voters to change the state constitution to outlaw any consideration of race.
The 6th U.S. Circuit Court of Appeals said the issue was not affirmative action, but the way in which its opponents went about trying to bar it.
In its 8-7 decision, the appeals court said the provision ran afoul of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment because it presents an extraordinary burden to affirmative action supporters who would have to mount their own long, expensive campaign to repeal the constitutional provision.
Similar voter-approved initiatives banning affirmative action in education are in place in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.
Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.
The case was the court’s second involving affirmative action in as many years. In June, the justices ordered lower courts to take another look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify any use of race in admissions.
The case is Schuette v. Coalition to Defend Affirmative Action, 12-682.
What’s interesting here is not that SCOTUS came to the right decision (or that Breyer went along with the majority): that’s merely surprising. Instead, what may be important here is how this decision provides some indication as to how SCOTUS might rule on things like California’s proposition 8, once proponents of that democratically passed amendment to the state’s Constitution overcomes the hurdle of “standing” that SCOTUS used to dodge the issue in a 2013 ruling.
To listen to the majority — Kennedy notes that “nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results” in Michigan — is to listen to a Court that is clearly at an ideological crossroads, particular insofar as it in essence denied States like Arizona the rights to pass laws to combat illegal immigration under the pretense that the Executive has “discretion” on whether to follow such laws, just as they have discretion when it comes to enforcing already existing federal law like our current immigration statutes and DOMA.
The real takeaway here, though, comes from the dissent, written by Sotomayor, the Wise Latina, who complains that “without checks, democratically approved legislation can oppress minority groups” — an argument evidently rejected in this case by the majority.
Which means that, though the leftists will try to fight Prop 8 and likeminded state constitutional amendments securing the traditional definition of marriage on equal protection grounds under the 14th Amendment (which had nothing whatever to do with marriage or homosexuals, and so has no jurisdiction over questions raised on their behalf, from an originalist perspective), the Court here has, at least in this case, rejected that argument: affirmative action is not, despite Sotomayor’s overheated rhetoric, a constitutionally protected “civil right,” and therefore voters of each state are allowed to make the determination as to whether or not they find what is in essence a long-enforced, activist-led social experiment enshrined in Bakke, an effective or even viable law.
If the decision on Proposition 8 comes down to the same question — is same sex marriage a “civil right,” or can states determine the meaning of marriage, based on long-standing traditional understandings of the legal arrangement and definition of the term? — we have seen in this particular instance the majority suggest that what is not a civil right, and same sex marriage is not, but is instead a semantic intrusion on a long-standing institution (a civil rights battle over same-sex civil unions may well go the other way, and arguably should), is, therefore, a matter of state jurisdiction.
Now, don’t get me wrong: I think the Court will be swayed by the faulty and dishonest “civil rights” argument, or at least pretend to be, and deny states (and by that, we are talking about the majority of we, the people) the right to make our own determinations. States that refuse to abide such a decision will then be held as civil rights violators by the Justice Department and will be subject to all sort of legal molestation.
But what will be evident, should all this come to pass, is that we are living not under a stable or even coherent rule of law, but rather one driven by political expediency, the whims of 9 philosopher kings and queens, and special interest groups.
Which is judicial oligarchy, nothing less — and as such, is an affront to a representative constitutional republic built specifically around federalism.
Of course, I’m no lawyer, so take this all with a grain of salt. Just one guy’s opinion. And it’s just one guy who doesn’t happen to do designer cupcakes. So there’s that.