My former Manhattan Institute colleague tackles the recent racial-preferences case (earlier here and here) with the incisiveness and clarity for which she is well known [City Journal]
Schuette has been ridiculed by preference opponents for posing the question of whether the equal protection of the laws — i.e., race neutrality — violates the Fourteenth Amendment’s guarantee of equal protection. But even BAMN did not have the temerity to make so illogical a claim. Rather than arguing that a ban on racial preferences was unconstitutional per se, BAMN was forced to take up an arcane line of Supreme Court precedent that turned its complaint against Proposal 2 essentially into a quasi-voting-rights claim. It was the locus of decision-making, not the content of Proposal 2, that was unconstitutional, BAMN alleged. The proponents of Proposal 2 had denied minorities the ability to participate meaningfully in the political process, the group said, by resolving the question of racial preferences through a state ballot initiative, rather than at the university level.
This odd line of attack derived from the Supreme Court’s little-known “political process” doctrine, stemming in part from a 1982 case, Washington v. Seattle School Dist. No. 1. The Seattle City Council had passed a law requiring school busing to integrate local schools. In response, Washington state voters passed an initiative banning busing as a response to anything other than deliberate school segregation. Hearing a challenge to that initiative, the Supreme Court ruled that by moving the question of busing from a local to a state level, busing opponents had erected barriers to minorities’ right to political participation and had made it harder for them to defend their interests in the political arena, therefore denying them the equal protection of the laws.
The political-process doctrine is a jurisprudential disaster, made up out of thin air and shot through with unsupportable empirical assumptions — such as that higher levels of governmental organization inherently disadvantage minorities. The civil rights movement, after all, embraced the idea that the federal government was a better protector of minority rights than states or localities. Anti-preference voter initiatives failed at different stages in Missouri and Colorado, belying the claim that a voter referendum is stacked against minorities. Moreover, it’s preposterous to assert as a legal matter that a legitimate method of lawmaking suddenly becomes constitutionally infirm if a court deems its subject matter to be “racial.” The political-process doctrine is simply an ad hoc, desperate means of overturning on process grounds laws that a court couldn’t otherwise invalidate on their merits. And its application to the Michigan case produced several unintended consequences for preference supporters.
She also has some interesting speculation as to why the Court plurality might have chosen to keep the political process doctrine “on life support” rather than overrule it forthrightly. Read the whole thing here.
Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.
I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).
More in a second post; and Hans Bader has an extensive analysis, including implications for costly preferences in public contracting.
A few more notes on the case already covered yesterday in tweet form:
Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.
To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.
Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).
Josh Blackman on yesterday’s oral argument in Schuette v. Coalition To Defend Affirmative Action.