Bench Memos

A Victory for Equality: Schuette v. BAMN

Today the Supreme Court upheld Michigan’s state law forbidding racial discrimination by the government in Schuette v. Coalition to Defendant Affirmative Action (By Any Means Necessary), a case I’ve posted about here before. (Full disclosure: I filed an amicus brief last year in support of the state of Michigan.) In 2006, Michigan passed a constitutional amendment forbidding the state from considering race, sex, ethnicity, or national origin in public employment, education, contracting, or the admissions process for higher education. The Court wasn’t addressing whether the amendment should have been passed, but whether the state could pass it in the first place.

The Sixth Circuit originally concluded that based on the political process doctrine, a series of Warren Court–era cases designed to enforce federal antidiscrimination laws, Michigan had acted unconstitutionally. Now, the Constitution clearly requires equality under the law, so it’s hard to see how prohibition of discrimination would constitute discrimination. But sometimes courts get confused.

In any event, the Supreme Court reversed the Sixth Circuit, with Justice Kennedy writing the plurality opinion. The Chief wrote a concurring opinion, while Justices Scalia and Thomas wrote a separate opinion concurring in the judgment. Interestingly, Justice Breyer wrote a separate opinion concurring in the judgment, while Justice Sotomayor wrote a dissent that Justice Ginsburg joined. (Justice Kagan was recused.)

Justice Kennedy’s opinion is very encouraging, and is well worth reading. As an initial matter, Justice Kennedy limits the political process doctrine, and argues that if the Sixth Circuit’s conception of the doctrine were adopted, it would require the courts to decide “which political policies serve the ‘interest’ of a group defined in racial terms.” As Justice Kennedy correctly points out, it is absurd to think that all individuals of the same race think alike, so attempting to go around categorizing individuals by race would be “inherently suspect.” Such an effort would impose no end to the courts’ constitutional legitimacy problems, not least because “Racial division would be validated, not discouraged,” if the Sixth Circuit’s reasoning were upheld.

Perhaps the most inspiring sentence in Justice Kennedy’s opinion is on page 15 of the slip opinion: “The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” That may seem like Con Law I material, but it needs to be said. Often.

And then: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Chief Justice Roberts’s concurring opinion is only two pages long, which is just long enough to rebut Justice Sotomayor’s argument that those who disagree with her policy preferences are failing to take race seriously.

Justice Scalia’s opinion concurring in the judgment (joined by Justice Thomas) is classic Scalia: pithy, trenchant, and scathing. Although it joins the plurality’s opinion to the extent that it repudiates the political process doctrine but takes issue with its synthesis of the line of cases, the bulk of Scalia’s opinion focuses on the questionable premises of the doctrine, its administrability problems, and reasons why it should be overruled.

Justice Breyer’s opinion concurring in the judgment is mainly directed at explaining how narrow this case is, and that it wouldn’t fit within the political process doctrine.

Justice Sotomayor’s dissenting opinion occupies 57 pages and finds common ground, oddly enough, with Justice Scalia. She starts with a long history of racial discrimination, expounds the political process doctrine and defends its premises (with almost two full pages devoted to Carolene Products), and responds to Justice Breyer and others who voted to reverse. She agrees with Justice Scalia that the majority has not applied the political process doctrine as it appeared in prior cases.

Toward the end of the opinion, though, the tone changes and Sotomayor gets personal (this is what Chief Justice Roberts was responding to). She calls her colleagues “out of touch with reality” and accuses them of wanting to “sit back and wish away, rather than confront” racial inequality. She closes out the opinion with a brief tour of affirmative-action history and argues that race-sensitive admissions policies are a good thing.

But Michigan was trying to prevent discrimination or preferences based on sex, color, ethnicity, and national origin, not just race. And Michigan was trying to prevent discrimination and preferences in public hiring and public contracting, not just education. She acknowledges the breadth of Michigan’s effort to create neutrality, but her opinion is quite a disappointment on this score. Although the Michigan constitution demands strict neutrality in hiring, firing, admissions, and contracting, Sotomayor thinks neutrality itself is constitutionally suspect.

Which raises a provocative question: Would the Equal Protection Clause pass muster for Sotomayor? Or is it too neutral?

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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