Bench Memos

Schuette Argument Recap

Does Michigan’s constitutional amendment requiring equal treatment under state law violate the Equal Protection Clause of the U.S. Constitution? On Tuesday the Supreme Court heard arguments on this question in the case of Schuette v. Coalition, this term’s marquee race case.

The case is a follow-up to the Supreme Court’s 2003 decision in Grutter v. Bollinger, which blessed the explicit consideration of race as a plus factor in admissions to the University of Michigan Law School. The citizens of Michigan responded to Grutter by passing a constitutional amendment that forbids the state from considering race, sex, ethnicity, or national origin in its higher-education admissions processes and in state hiring.

Although I think Michigan fared better at oral arguments, thanks in no small part to its talented solicitor general, John Bursch, there was serious questioning directed at both sides. Justices Sotomayor and Ginsburg played a spirited defense challenging Michigan’s constitutional requirement of race neutrality, but it seems safe to say that the opponents of the law are in serious trouble, and we could easily see a lopsided decision upholding Michigan in this case.

Ostensibly, the case turns on the somewhat obscure “political process doctrine,” which the Court deployed in Hunter v. Erickson (1969) to strike down a city law requiring a supermajority vote to pass fair-housing laws and in Washington v. Seattle School Board (1982) to strike down a state initiative that had eliminated Seattle’s program of busing students for desegregation.

Challengers of the law included the Coalition to Defend Affirmative Action and a group of students, faculty, and prospective applicants to Michigan universities. They took the position that the political process doctrine invalidates any state constitutional provision that imposes hurdles to passing laws dealing with race. They complain that a public university can admit students using a host of factors, and change them fairly easily, but cannot use racial preferences except by way of another constitutional amendment.

In response, defenders of the Michigan amendment argued reductio ad absurdum. If Michigan’s law — which merely requires equal treatment — falls, the next dominos to go would logically be federal statutes like the Fair Housing Act and state equal-protection clauses that similarly require equal treatment. (Full disclosure, I filed an amicus brief expanding on this argument). Michigan argued that the political process doctrine at most should apply only where an antidiscrimination law is repealed, not where racial preferences were repealed in favor of non-discrimination. It also allowed that the doctrine could be eliminated altogether as redundant following the Washington v. Davis line of cases, which allow suits under the Equal Protection Clause to challenge laws that both disproportionately affect minorities and were passed with discriminatory intent. Put simply, standard equal-protection jurisprudence is more than enough to stop Michigan, or any other state, from engaging in racial sheenanigans under the pretext of race neutrality.

Not surprisingly, a central concern of the justices during oral arguments was whether this case can be distinguished from Seattle and its application of the political process doctrine. Justices Sotomayor and Ginsburg pressed the state of Michigan to distinguish it, and Justice Kennedy joined in. At times it seemed that Kennedy couldn’t see much difference in substance between the cases, while at other times he appeared impressed by Michigan’s suggestions of ways to limit Hunter and Seattle.

Another defining discussion centered on one of the chief justice’s questions. If a university board of trustees delegates its authority over admissions policies to a faculty committee, can it limit that delegation simply because it opposes the use of racial preferences by the committee? If so, he continued, why can’t the state of Michigan do the same thing and limit the authority of boards of trustees to use racial preferences? Neither of the lawyers arguing for challengers of the law seemed to have an answer that satisfied the chief or Justice Kennedy.

Justice Breyer asked a question that poked at the same weakness in the challengers’ arguments: whether their theory simply requires all decisions touching on race to be made at the lowest possible level. When the lawyer for the Coalition began digging herself into a corner on this line of questioning, Justice Sotomayor came to her rescue by suggesting that issues touching on race cannot be withdrawn from the ordinary processes already in place. But Justice Kennedy again seemed unsatisfied because this answer did not address the delegation issues raised by the chief justice.

Whatever happens, we know the case won’t split 5–4 because Justice Kagan is recused, presumably because of having worked on the case while solicitor general. If Justice Kennedy sides with the court’s remaining liberals, the resulting 4-4 decision would leave the Sixth Circuit’s holding against Michigan in place. More likely in my view would be a 5–3 or 6–2 decision in favor of Michigan. A unanimous opinion is also possible if the court issues a vanishingly narrow decision largely restating the law but distinguishing the current case from Seattle. And a decision in the area of racial preferences that both Justice Sotomayor and Justice Thomas can come to agreement on would have to be narrow indeed.


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