In a widely anticipated decision, the U.S. Supreme Court ruled on Tuesday of this week in Schuette v. Coalition to Defend Affirmative Action (No. 12-682) (PDF), holding in a 6-2 ruling (with Justice Kagan recusing herself) that Michigan’s Proposal 2 – which amended the Michigan Constitution to prohibit the use of race-based preferences in state university admissions – was constitutional and did not violate the Equal Protection Clause. The Sixth Circuit Appellate Blog has covered Proposal 2’s journey through the Sixth Circuit and up to the Supreme Court over the course of several years (see, for example, here, here and here), and the Supreme Court’s ruling brings that specific dispute to a definitive close. But based on the divisions apparent in the Supreme Court’s plurality opinion, concurrences and dissent, it is clear that the broader issue of affirmative action will remain the subject of intense public discourse, lawmaking and legal action for years to come.
The three-person plurality opinion in Schuette was written by Justice Kennedy and joined by Chief Justice Roberts and Justice Alito. The plurality began its analysis by making clear what Schuette did not decide: “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.” Rather, determining whether Proposal 2 was constitutional involved only “whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions.” Examining the underlying so-called “political process doctrine” precedent before the Court (i.e., the 1967 Mulkey case, the 1969 Hunter case, and the 1982 Seattle case), the plurality found that such cases provided no basis “to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended.” Thus, the plurality concluded that “[t]his case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. 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 commit this policy determination to the voters.”
Chief Justice Roberts wrote a brief concurrence in which he addressed certain criticism made by the dissent. In particular, the Chief Justice addressed the passage from the dissent stating that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” That passage appeared to be a direct retort to the Chief Justice’s famous comment from the 2007 Parents Involved in Community Schools decision, in which he wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In his short concurrence, the Chief Justice took up the dissent’s retort and rejoined that “[p]eople 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 Scalia concurred, joined by Justice Thomas. With the sort of turn of phrase for which he is by now well known, Justice Scalia began by contextualizing the issue: “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.” His concurrence parts ways with the plurality, which Justices Scalia and Thomas believe should have outright repudiated the political process doctrine, found by the concurrence to be “[p]atently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence.” Invoking a quote from the dissent in Plessy v. Ferguson — that “[o]ur Constitution is color-blind” — the concurrence concludes that “[t]he people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”
Justice Breyer issued a standalone concurrence. He began by stating that he “continue[s] to believe that the Constitution permits, though it does not require, the use of the kid of race-conscious programs that are now barred by the Michigan Constitution.” Yet, Justice Breyer wrote that “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of [affirmative action] programs.” Justice Breyer, moreover, found not only that the Hunter/Seattle line of precedent “does not easily fit this case,” but also that such precedent “runs up against a competing principle … favor[ing] decisionmaking through the democratic process.” That process, he concludes, permits voters both to adopt and to reject race-conscious policies, thus underscoring the constitutionality of Proposal 2.
A lengthy and impassioned dissent was written by Justice Sotomayor and joined by Justice Ginsburg. Addressing the United States’ “lamentable record of stymieing the right of racial minorities to participate in the political process,” the dissent found that Proposal 2 effectively represented the latest “chapter of discrimination.” The dissent would have ruled that Proposal 2 “changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities.” The dissent lamented that the Hunter/Seattle line of precedent was “effectively discard[ed],” and that the plurality’s logic “embraces majority rule without an important constitutional limit.” The dissent agreed that “[w]hile our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently” — which, according to the dissent, is what Proposal 2 accomplished.
The Schuette ruling is notable both for a somewhat broad consensus on the Court permitting States to experiment with erecting bans on race-conscious policies, and also for deep divisions within the Court regarding the fairness, desirability and effect of such policies. In that sense, Schuette may serve as a microcosm for the larger debate and uncertainty regarding affirmative action in modern-day America.
