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).
Roberts concur in Schuette: Not out of touch to conclude racial preferences may themselves have debilitating effect #SCOTUS
— Kimberly Robinson (@KimberlyRobinsn) April 22, 2014
SCOTUS, 6-2, in Schuette: Constitution permits Michigan to decline to engage in discrimination [via @LIICornell] http://t.co/AfxwIRhPy0
— Walter Olson (@walterolson) April 22, 2014
"[In a] jurisprudential twilight zone, we face a frighteningly bizarre question. Does the 14 Amend forbid what its txt requires?" #schuette
— Brian B. Bell (@BrianBBell) April 22, 2014
Scalia concurrence calls for frankly overturning, not limiting, bad Hunter/Seattle line of "political process" cases http://t.co/tRbP5ExBx3
— Walter Olson (@walterolson) April 22, 2014
Scalia rips "noxious fiction that, knowing only a person’s color/ethnicity, we can be sure he has a predetermined set of policy 'interests'"
— Walter Olson (@walterolson) April 22, 2014
Scalia: Hunter/Seattle case line "insists that only those political-process alterations that burden racial minorities deny equal protection"
— Walter Olson (@walterolson) April 22, 2014
Scalia does not display hushed reverence toward Carolene Products: "dissent trots out the old saw, derived from dictum in a footnote."
— Walter Olson (@walterolson) April 22, 2014
Scalia: Hunter-Seattle case line also clashes with Holt Civic Club line of SCOTUS cases letting states decentralize power as they please
— Walter Olson (@walterolson) April 22, 2014
What was the Coalition to Defend Affirmative Action thinking? [Stuart Benjamin, Volokh] http://t.co/gK7nX1qpg4
— Walter Olson (@walterolson) April 22, 2014
Sotomayor dissent doubles down on Hunter/Seattle "political process" fallacy, compares MI affirm-act bar to vote ban http://t.co/mfFUwcTNDr
— Walter Olson (@walterolson) April 22, 2014
Sotomayor says MI voters "changed rules in middle of game". What later stage should they've waited for to make the timing legit in her view?
— Walter Olson (@walterolson) April 22, 2014
Sotomayor: "MI’s Constitution has only rarely been amended thru the initiative process. Between 1914 & 2000… only 20 have passed." Only?
— Walter Olson (@walterolson) April 22, 2014
Where Scalia and Sotomayor agree is that the plurality chose to limit Hunter-Seattle by contorting Court's earlier reading of them.
— Walter Olson (@walterolson) April 22, 2014
Sotomayor mantra "Race matters" likely to thrill some readers, but it's… imprecise (all 9 Justices agree race matters, disagree on how)
— Walter Olson (@walterolson) April 22, 2014
Plurality cites 1 of my least fave SCOTUS cases, Reitman v. Mulkey ('67): Calif. voters can't bar "fair-housing" laws http://t.co/kYGDle1eNb
— Walter Olson (@walterolson) April 22, 2014
Plurality: unchecked logic of Hunter-Seattle cases would open every law to EPC/racial impact challenge. To some on Left, feature not bug?
— Walter Olson (@walterolson) April 22, 2014
More in a second post; and Hans Bader has an extensive analysis, including implications for costly preferences in public contracting.