Special Report

Going Negative on Affirmative Action

Roberts teases out a narrow ruling.

By 4.23.14

UPI
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The good news about yesterday’s Supreme Court ruling is that it affirmed the right of the people to ban racial preferences in university admissions. The bad news is that it didn't go further.

In 2003, the Court handed down two landmark decisions: Gratz v. Bollinger and Grutter v. Bollinger. Taken together, the cases struck down a racial quota system used in admissions at the University of Michigan, but allowed for more limited race-based preferences. As Kevin Mooney pointed out, Justice Sandra Day O’Connor said in the Grutter decision that voters have the last say on affirmative action regimes.

So the people of Michigan exercised their right, voting 58 percent to 42 percent to adopt a new constitutional amendment that banned race-based preferences in 2006. A pro-affirmative action group sued and the Sixth Circuit Court of Appeals later struck down the new amendment. Michigan’s attorney general, Bill Schuette, took his case to the Supreme Court, and yesterday six justices ruled in his favor. The amendment will survive.

The case, Schuette v. Coalition to Defend Affirmative Action (By Any Means Necessary), was always a long shot for its mouthful of a defendant. The Court’s four conservative justices are staunchly opposed to racial preferences, and the swing vote, the nebulously libertarian Anthony Kennedy, usually is too. As Volokh Conspiracy blogger Stuart Benjamin wrote in 2012, “my main question is how badly the Coalition to Defend Affirmative Action loses. My guess is that they get maybe two votes on the Supreme Court.” Sure enough, only Justices Sotomayor and Ginsburg dissented. The reliably liberal Justice Breyer sided with the majority. Justice Kagan recused herself from the case.

Breyer’s vote should waterproof Schuette against liberal tantrums over right-wing judicial extremism. And while the ruling was decisive, the majority justices were divided. The stumbling block was a series of court decisions, particularly Washington v. Seattle School District No. 1, which had upheld government-mandated racial preferences in the past. Justice Kennedy, backed by Roberts and Alito, contended that the Sixth Circuit had read Seattle too broadly. Justice Scalia, joined by Thomas, wrote a concurring opinion arguing that Seattle should have been overruled entirely and that equal protection under the law is always an individual right that precludes racial preferences.

Scalia’s opinion uses everything in his bag of tricks—those polemical one-liners, the sardonic italics. He attacks the idea of courts dividing people into racial interest groups by wondering: “Does a half-Latino, half-American Indian have Latino interests, American-Indian interests, both, half of both?” He concludes by declaring that Seattle and another case are “patently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence.” All that’s missing is his use of the word “argle-bargle”—Scalia-speak for “bulls--t.”

It’s another instance of the conservative justices playing good cop-bad cop. Usually John Roberts takes a narrow view, careful not to upend precedent, while Clarence Thomas is more sweeping and satisfying. We saw this in the McCutcheon campaign finance case when the Court ruled that limits on the total dollar amounts of political donations were unconstitutional; Thomas alone said the Court should strike down individual contribution caps altogether. “Thomas is subtly pulling the court in his direction by virtue of the position he takes,” lawyer Tom Goldstein recently told the Hill.

This time Scalia joined Thomas to apply pressure from the right. Perhaps they will influence the Court on affirmative action in the long run. But in the meantime, we’re left to wonder what could have been. Scalia argues that Kennedy “reinterprets [Seattle and other cases] beyond recognition,” when he should be invalidating them. If a majority had coalesced around this view, the Court could have repudiated its history of endorsing affirmative action. Instead race-based preferences live on, albeit in limited form and subject to the will of the voters.

Justice Sotomayor, who wrote the dissenting opinion, agrees with Scalia that Kennedy had a tortured interpretation of Seattle, but says the original wisdom of that case should have been applied to Schuette. She then lurches into a lecture on race that sounds like a Melissa Harris-Perry monologue:

Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

None of this has anything to do with the law. Yet on she rambled for fifty-eight pages, calling the majority justices “out of touch with reality” and repeating the refrain that “race matters.” Roberts took the unusual step of writing a two-page opinion to rebuke her.

So there it is: Four opinions from eight justices on a deeply divided bench that nevertheless upheld a ban on affirmative action by a country mile.

The Court certainly could have done more and it’s disappointing that it didn’t. But at least the right to ban affirmative action was preserved for voters—67 percent of whom oppose race-based preferences in college admissions. Eight states, including deep-blue California, already have prohibitions on affirmative action. For conservatives who have long battled reverse-racism, things are looking up.

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Matt Purple is The American Spectator's assistant managing editor.