The Supreme Court will soon hear oral argument in Schuette v. Coalition to Defend Affirmative Action, et al. (No. 12-682), which is shaping up to be one of the biggest cases in the current term.   As this blog has reported (see here and here), the case had polarized the Sixth Circuit, eliciting a strong dissent on the three-judge panel and leading to a narrow affirmance before the en banc court.  On October 15, 2013, it will be the justices’ turn to take up the controversial case and hear argument as to whether the Sixth Circuit correctly ruled Michigan’s Proposal 2 unconstitutional.

Schuette is an affirmative action case, but with a significant twist – and an interesting history.  In 2003, Justice Sandra Day O’Connor wrote the 5-4 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), finding constitutional the race-conscious admissions policy of the University of Michigan Law School.  The statewide ballot initiative that became Proposal 2 (PDF) emerged in reaction to Grutter.  Michigan voters were presented with a constitutional amendment that forbade “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  Despite its origin in the Grutter decision, this initiative had not broken new ground but followed in the footsteps of similar voter-approved initiatives in California (Proposition 209) and Washington (Initiative 200 [PDF]). In November 2006, Proposal 2 was approved by 58% of Michigan voters, triggering the filing of the underlying lawsuit challenging Proposal 2’s constitutionality as to public education.

Although the district court had found Proposal 2 constitutional, in July 2011 a divided panel of the Sixth Circuit reversed (PDF), determining that Proposal 2 violated the Equal Protection Clause by “unconstitutionally alter[ing] Michigan’s political structure by impermissibly burdening racial minorities.”  In a strongly worded dissent, Judge Gibbons argued that Supreme Court precedent had not “require[d]” the use of race in college admissions but had merely “tolerate[d]” it, leaving Michigan free to prohibit the practice.  The full circuit court, sitting en banc, narrowly affirmed (PDF) the panel decision by an 8 to 7 margin, with two judges recusing themselves (Judges Kethledge and McKeague) and with Senior Circuit Judge Daughtrey sitting en banc because she had participated in the panel decision.  In striking down Proposal 2, the Sixth Circuit put itself at odds with the Ninth Circuit, which found constitutional California’s similar Proposition 209 first in 1997, and again as recently as 2012 (PDF).

Fresh off their decision in the affirmative action case from last term, Fisher v. University of Texas, 570 U.S. __ (2013) (PDF), the justices must now consider a related but distinct issue: whether, under the Equal Protection Clause and the “political restructuring doctrine,” a state’s electorate may amend their constitution to prohibit preferential treatment based on race, sex, ethnicity and national origin without, as a result, impermissibly burdening minorities in Michigan’s political process.  There is certainly no shortage of briefing to read: in addition to the petitioner’s brief (PDF) and the briefs of the three respondents — Regents of the University of Michigan, Board of Governors of Wayne State University and Chase Cantrell, et al. (PDF) — 17 separate amicus briefs have been filed in Schuette.  But the justices will have to tackle those briefs without the services of Justice Kagan, who has recused herself from the case.

Buzz is starting in advance of oral argument, with SCOTUSblog sponsoring an online symposium regarding what to expect in Schuette and the impact that the case might have.  The Sixth Circuit Appellate Blog will continue to monitor developments, and will be sure to update our readers on the oral argument slated for one month from now.