As regular readers of this blog know, the Sixth Circuit Appellate Blog has been covering the saga involving Michigan’s 2006 voter-approved Proposal 2 outlawing affirmative action since a divided Sixth Circuit panel ruled it unconstitutional (PDF) in July 2011.  Following that panel ruling, a nearly evenly split (8-7) en banc ruling by the Sixth Circuit affirmed the panel decision (PDF), and the U.S. Supreme Court ultimately accepted certiorari on the matter to address a split between the Sixth and Ninth Circuits over very similar, voter-approved state constitutional amendments.  On October 15, 2013, this case, now styled Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682), reached its next critical stage: oral argument before the eight justices — eight, because Justice Kagan has recused herself from the matter.

In the days preceding oral argument, the news media and commentators (see, examined what is at stake in Schuette and indulged in the perennial guessing game as to how the Supreme Court will ultimately rule.  That guessing game now has the benefit of oral argument before the Supreme Court, the high points of which this blog outlines below.  Although this blog will not hazard a guess as to the outcome, based on the oral argument it appears that Justice Kennedy may well prove to play a pivotal role in the Court’s forthcoming ruling.

Oral argument began with John Bursch, Michigan’s solicitor general, who, from the very beginning of his argument, was peppered with questions by Justices Sotomayor and Ginsburg expressing skepticism that Proposal 2 differed materially from two underlying precedents establishing the political restructuring doctrine (Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982)).  Justice Kennedy joined in that questioning, telling Mr. Bursch that he, too, was “hav[ing] difficulty distinguishing Seattle,” in which the Court struck down under the political restructuring doctrine a ban by the State of Washington on racial busing.  Mr. Bursch attempted to distinguish Hunter and Seattle by emphasizing that both cases involved antidiscrimination laws that were repealed by a State constitutional amendment whereas Proposal 2 did not repeal an antidiscrimination law but, instead, repealed racial preferences.

Next up was Mark D. Rosenbaum, who argued on behalf of a group of plaintiffs who opposed Proposal 2.  Sensing that Justice Kennedy’s question regarding Seattle could prove critical, Mr. Rosenbaum began his argument by addressing that very point and stating that Seattle was not distinguishable.  That set off a series of exchanges between Mr. Rosenbaum and Justices Alito and Kennedy and Chief Justice Roberts over whether the precedents could be distinguished.  The Chief Justice questioned at what point the political restructuring doctrine would come into effect in the decisional hierarchy, a question that Justice Kennedy pursued at greater length.  Justice Kennedy appeared to be concerned about the workability of the doctrine, asking when the doctrine would be implicated: would it be violated when a college board of regents imposed a procedural change on the faculty, when a legislature imposed a procedural change on a board of regents, or exactly when?  Toward the end of Mr. Rosenbaum’s argument, Justice Scalia entered the fray, questioning whether “[e]very prohibition of racial classification [would be] itself a racial classification,” thereby running afoul of the political restructuring doctrine.

The next attorney to argue was Shanta Driver, who argued on behalf of the Coalition to Defend Affirmative Action.  Ms. Driver began by arguing that the purpose of the political restructuring doctrine vis-a-vis the 14th Amendment was to “protect minority rights against a white majority” — drawing immediate skepticism from Justice Scalia, who responded that the Supreme Court had “held that the 14th Amendment protects all races.”  Justice Breyer posed a series of questions to Ms. Driver that seemed to echo Justice Kennedy’s concern about the workability of the doctrine and how — and why — it would apply to some levels of the decisional hierarchy but not to others, a line of questioning rejoined by Justices Alito and Kennedy.

Solicitor General Bursch returned for rebuttal, and again ran into skepticism from Justices Ginsburg and Sotomayor, who were concerned that Proposal 2 “put hurdles in the way of a disadvantaged minority.”  Justice Alito returned to the line-drawing inquiry that he and other members of the Court had raised, asking if a clear line could be drawn at the level of state constitutional amendments, such that the political restructuring doctrine would only be triggered where a constitutional amendment changed the nature of the political process.  Mr. Bursch replied that such a line would have unintended consequences, including invalidating Michigan’s own constitutional Equal Protection Clause, which has a racial focus.  In closing, Mr. Bursch returned to his primary theme, stating that Proposal 2 was distinguishable from Hunter and Seattle because it did not repeal an antidiscrimination law and ending with the assertion that “it does not violate equal protection to require equal treatment.”

Post-argument analysis (see, e.g., here) focused on Justice Kennedy as the key vote, since the other justices appeared to line up predictably given their prior rulings on affirmative action cases and since Justice Kennedy’s questions expressed degrees of skepticism as to both sides of the argument.  Because Justice Kagan has recused herself from the case, there exists the possibility of a 4-4 split, in which case the Sixth Circuit’s en banc decision would stand, though only for Ohio, Michigan, Kentucky and Tennessee.  Clearly, Schuette is going to be one of the big decisions for the Supreme Court this term, and the Sixth Circuit Appellate Blog will keep a close eye on the case going forward.