The Patriot Post® · Supreme Court Affirms Michigan's Action
In a decisive victory for voters and, by extension, a victory for true equal rights and equality of opportunity, the Supreme Court yesterday upheld a Michigan ban on using race-based criteria in college admissions. Article 1 Section 26 of the Michigan constitution states: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” By a 6-2 vote, with Justices Sonia Sotomayor and Ruth Bader Ginsburg dissenting and Justice Elena Kagan recusing herself, the Court reversed a lower court’s ruling that the ban – a constitutional amendment enacted in 2006 through referendum with the support of 58% of Michigan voters – placed a burden on minorities.
The case and the varying written opinions were complicated. As The Wall Street Journal sums up, “[T]he majority arrived at this destination via three opinions that offered different legal explanations and won’t provide much clarity on race and the law going forward.” In fact, previous Court muddling prompted the passage of Michigan’s ban, and the current ruling did little to clarify things.
The core issue the Court actually decided was the validity of a voter-supported state law, not the constitutionality of racial preferences. As Justice Anthony Kennedy wrote in the majority opinion, “The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the states may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.” And in a win for the democratic process over judicial fiat, Kennedy refused to concede that the issue at hand was “too sensitive or complex to be within the grasp of the [Michigan] electorate.” He further wrote that the Michigan law does not inflict any hurt or injury on racial minorities, but also that “[t]his case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. Democracy does not presume that some subjects are either too divisive or too profound for public debate.”
Nevertheless, Justice Sonia Sotomayor’s scathing dissent attempted to frame the issue not as one of constitutional jurisdiction but as one of racial tensions. She wrote, “For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.” Furthermore, she claimed that Michigan voters had “changed the rules in the middle of the game” and added that “it is clear that race-neutral alternatives are not adequate to achieve diversity.” She said her colleagues can’t “wish away” racial inequality.
Unfortunately, Sotomayor’s argument doesn’t fit the question, as the case at hand had nothing to do with equal participation in self-government but everything to do with voters legally prohibiting preferential treatment based solely on color of skin. Sotomayor has clearly bought into the Left’s racial grievance campaign, and doesn’t seem to be able to see beyond her own race.
Furthermore, and ironically, if anything has changed the rules midstream, it’s the shift from “equality of opportunity” as the goal to “diversity” and “equality of outcome.” Indeed, where outcome is the measurement of whether laws are just, the rules will never be static. If Congress had race quotas for Members, for example, elections would be meaningless.
This is not the first time the Supreme Court has considered a case involving affirmative action in higher education – and it likely won’t be the last. Less than a year ago, SCOTUS avoided issuing a decisive ruling in the case of Fisher v. University of Texas at Austin, instead punting the issue back to the lower courts. While yesterday’s decision respected both the will of voters and the principle of equal opportunity for all, it’s safe to say that this issue has not seen its last legal battleground.
As an aside, what are the implications now for other state votes like California’s Proposition 8?
In conclusion, we refer back to Chief Justice John Roberts’ famous words in a 2007 case involving race preferences: “[T]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” What a novel idea.