A year ago, the Supreme Court gutted a law passed overwhelmingly by Congress aimed at preventing states from reducing voting rights for racial and ethnic minorities. The 5-4 decision in Shelby County v. Holder, written by Chief Justice John G. Roberts Jr., blinked at the contemporary evidence of racial discrimination in voting and paused only briefly before overriding the decision of the political branches to extend the Voting Rights Act through 2031.
Now, the Roberts Court has given states another free pass to reduce the political rights of racial and ethnic minorities, in the face of its own precedents. This time, justices in the majority paid great obeisance to the political process in this case, a decision not by Congress but the voters of Michigan to prohibit public colleges and universities from using racial preferences in admissions.
The 6-2 decision in Schuette v. Coalition to Defend Affirmative Action [April 22] upheld a state constitutional amendment approved by 58 percent of Michigan voters in 2006. The amendment did not merely override the decision by the University of Michigan’s elected Board of Overseers to retain limited racial preferences in admissions. It took away the university’s power ever to consider reinstituting racial preferences, even though the school’s more common legacy preferences for children of alumni was left untouched.
The ruling came as no surprise. The Roberts Court conservatives have already shown themselves to be no fans of the remedies previously approved by the Supreme Court to promote racial diversity in K-12 public schools or in state colleges and universities. A 5-4 decision written by Roberts in 2007 limited the ability of public schools to make race-based assignments to ensure diversity in K-12 education (Parents Involved in Community Schools v. Seattle School District No. 1).
Conservatives clearly had the upper hand in last year’s 7-1 decision, Fisher v. University of Texas, that made it measurably harder for state universities to justify racial preferences in admissions. Liberal justices, other than Ruth Bader Ginsburg, went along quite possibly out of relief that the majority had stopped short of overruling the precedents that allow racial preferences.
The unifying theme in these decisions is the conservative justices’ seeming belief that the rights of racial and ethnic minorities no longer need special guardianship from the Supreme Court. And that is the background needed to understand the impassioned dissent in last week’s case from Justice Sonia Sotomayor. The court’s first Latina justice openly credits affirmative action with allowing her to rise from a housing project in the Bronx through two Ivy League schools to reach the nation’s highest court.
Sotomayor attacks at the outset the majority’s belief in the sanctity of the political process. “Without checks, democratically approved legislation can oppress minority groups,” she writes. “For that reason, our Constitution places limits on what a majority of the people can do.”
In prior cases, the court itself had recognized that risk. In 1969 the court struck down an Akron, Ohio, ballot measure that barred the enactment of fair housing legislation except with voter approval (Hunter v. Erickson). Thirteen years later, it threw out a Washington state constitutional amendment that would have prevented the use of busing to achieve racial balance in public schools (Washington v. Seattle School Dist. No. 1, 1982).
In both cases, the court held that the Equal Protection Clause prohibits a restructuring of the political process designed to make it harder for minorities to obtain government action in their behalf. Opponents of Michigan’s amendment relied on this so-called political process doctrine in challenging the measure in federal court. The federal appeals court for Michigan divided bitterly in the case, but the 8-7 majority applied the Supreme Court’s precedents in ruling the measure unconstitutional.
In upholding the amendment instead, Justice Anthony M. Kennedy wrote in the controlling opinion that the measure was not designed to inflict injury on minorities. Michigan’s minority voters did not see it that way: exit polls indicated that 86 percent of African Americans and 69 percent of Hispanics voted against it.
Kennedy suggested that voters were simply acting to prohibit a practice racial preferences that itself was a source of racial resentment and hostilities. The same could have been said of the anti-fair housing and anti-busing measures that a previous Supreme Court had struck down. In any event, the number of minority applicants admitted to the University of Michigan has declined since the amendment was adopted, as Sotomayor noted in her dissent.
In distinguishing but not overruling those prior cases, Kennedy wrote only for himself, Roberts, and Justice Samuel A. Alito Jr. Conservatives Antonin Scalia and Clarence Thomas more candidly called for overruling the cases entirely. In her dissent, Sotomayor aptly said that the decision “effectively discards those precedents.” The logic of the decision, she wrote, “embraces majority rule without an important constitutional limit.”
Sotomayor continued with a personal cri de coeur over her colleagues’ seeming blindness to race-based realities in the United States today. “Race matters,” she writes, listing the kinds of slights regularly experienced by African Americans and Hispanics. The court’s ruling operates on the premise that legal rules recognizing that reality serve only to reinforce it. The history of equal protection law teaches the different lesson that the law, over time, can help society root out racial discrimination. But the Supreme Court is pulling back before the task is complete.