Wednesday, April 23, 2014

SCOTUS Rejects "Political Process" Challenge to Michigan Affirmative Action Ban

By Michael Dorf

My latest Verdict column unpacks yesterday's SCOTUS ruling in Schuette v. Coalition to Defend Affirmative Action. The column speaks for itself. Here I want to add the observation that I find each of the five separate opinions unsatisfactory in one way or another.

Justice Kennedy (for the plurality of himself plus CJ Roberts plus Justice Alito): I agree with the core reasoning of this opinion but it contains an objectionable paean to the positive liberty (in Berlin's sense) of citizens to make their own decisions about race-based affirmative action. That sentiment would be easier to swallow if Justice Kennedy, CJ Roberts, or Justice Alito had ever voted to uphold an affirmative action program. But as none of them has, it's hard to take them seriously when they say that they just want the voters to be able to have their say; they want voters to have their say when they reject race-based affirmative action, but not so much when the voters choose it. The opinion also goes on about how difficult it is to tell what counts as a "racial" matter under the Hunter/Seattle line of cases. This strikes me as silly, at least in the current case, where race is expressly the topic of the Proposition.

Justice Breyer (for himself): Alone among the eight Justices who participated in the case, Justice Breyer appeared to vote contrary to his policy druthers. Props to him for that. But the rationale that Justice Breyer offers--that race-based affirmative action in Michigan was chosen by administrators rather than voters--is contradicted pretty clearly by the information Justice Sotomayor provides in dissent. And even if Justice Breyer is right about that point, he has some responsibility to decide the case on principle. What would he do if the prior regime had been local-voter-approved? The logic of his opinion suggests that he would then be with Justice Sotomayor, but her dissent has some serious problems.

Justice Sotomayor (for herself and Justice Ginsburg): I'll give her the stare decisis point. This case really does seem to follow from the rationale of Hunter/Seattle--a point that Justice Scalia also makes. But Justice Sotomayor fails to provide a good argument for that rationale. In particular, why is the baseline for analysis whatever policy a locality happens to have?  Suppose a state supreme court interpreted its equal protection clause as barring race-based affirmative action. Would that be impermissible? Would the answer depend on whether the state's EP clause pre-dated the federal Fourteenth Amendment? How could it? As I noted in my criticism of the 9th Circuit ruling in the Prop 8 case, there's no sound basis for a constitutional endowment effect. The best explanation for the 9th Circuit ruling there was that, while a state might have a rational basis for not recognizing a right to SSM in the first place, a different reason might be needed to take away the right--or perhaps the taking away manifested animus. But Hunter/Seattle doesn't rely on either of these moves. It says the taking away is problematic in itself. And that's just odd.

Justice Scalia (for himself and Justice Thomas): I agree with a lot of what Justice Scalia says here in criticism of the Hunter/Seattle doctrine but I disagree with his view that those cases were wrong even on their facts. It seems to me that Justice Kennedy has it about right when he recharacterizes those cases as really about hidden animus or invidious purpose. The Scalia opinion also contains a whole lot of unnecessary snark in support of his background view that the EP Clause requires color-blindness. Most inexplicably, Justice Scalia says here, as he has said elsewhere, that "the text" of the EP Clause "plainly requires" color-blindness. Really? The text? The text of the Fifteenth Amendment expressly forbids race discrimination with respect to voting, but the text of the Fourteenth Amendment nowhere mentions race, much less the formalistic understanding of racial equality that Justice Scalia advances. There are respectable policy grounds for thinking that color-blindness is the best understanding of equal protection (although I disagree with them), and perhaps one could make a historical argument that the original understanding of the Fourteenth Amendment requires color-blindness (although there is pretty strong evidence to the contrary), but the text is simply silent on this issue.

CJ Roberts: The Chief Justice mostly writes in response to Justice Sotomayor, apparently offended that she's implying that he's a racist. I could see why he would be offended if that's what her dissent implied, but I don't think she was saying that. She seems committed to the (odd) proposition that it would be perfectly fine for the governing board of the University of Michigan to abandon affirmative action, and that wouldn't make them racists; she just thinks (wrongly in my view) that this is problematic when done by the voters in an initiative.


Joe said...

Sotomayor's dissent has some powerful comments on the reality of race and racism even if some might disagree with some places she goes.

As to the race-based AA point. I think it very well might be understood by her as impermissible if (see also Breyer) if it was used to block dealing with past and on going racial discrimination. For instance, if it was used to block race conscious plans in the days after Brown v. Bd in the South etc.

Second, the Seattle case says:

In effect, then, the charter amendment served as an "explicitly racial classification treating racial housing matters differently from other racial and housing matters." This made the amendment constitutionally suspect: "the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size."

Sotomayor cited Carolene Products, so let's say this reasoning applies at least to certain suspect classes. If the ban you cite is merely applied to race, yes, it very well might be problematic. I think the problem might be that you have to see the reason why they were so concerned about these measures.

The reason probably is that there was distrust in singling out race and Sotomayor's citation of history of racial discrimination suggests the point. Anyway, if an evenhanded no preference rule was in place, fine. Singling out race is a problem.

The case in particular involves the 'political process' principle. For that in particular, there seems to be a certain logic to be concerned with singling out racial groups in this fashion. Sotomayor connects the case to various voting rights cases.

The concern is that the change unevenly burdens certain groups and therefore corrupts the political process. A neutral "no preference" rule would not do that. Also, again, there seems to be a particular concern for Footnote 4 classes based on history and ongoing realities.

So, her argument has to be seen as a whole. Like the Prop 8 case -- change alone is not a concern w/o looking at the overall context involved. Anyway, Kennedy in Parents Involved said he accepts some race conscious actions. Like you, I think, I'm still waiting for him to actually vote to uphold one in the educational context.

barcrunchsub said...

Why would it be hard to take them seriously when they say that they just want the voters to be able to have their say when rejecting race-based affirmative action, but not so much when the voters choose it? When voters choose race-based affirmative action, constitutional challenges are necessarily reviewed under a heightened standard of scrutiny. But if voters eliminate the consideration of race, it is receives a more relaxed standard of review. In other words, the justices are not being disingenuous, they are simply letting the voters have their say because they can.

Michael C. Dorf said...

barcrunchsub: That would be a fair point if the application of strict scrutiny to affirmative action programs were dictated by the Constitution's text or the like, but it's the very same Justices who now say that they so value the democratic process who made up the "symmetry" rule that subjects race-based affirmative action to strict scrutiny in the first place, not much valuing the democratic process in that initial determination.

tjchiang said...

I think you are being perhaps excessively hard on Justice Kennedy. Yes his jurisprudence is hardly entirely neutral in the just-let-voters-decide sense. But I think it also pretty clear that (1) if left entirely unfettered, he opposes affirmative action, and (2) he is the fifth vote on the issue. Given those facts, the only reason that affirmative action hasn't been ruled entirely unconstitutional yet is that Justice Kennedy really does seem to believe in letting the voters decide and this sentiment acts as a constraint. The paean to positive liberty may not be the only thing he believes, but it really does seem to be something that he believes and it is doing considerable work.

Anonymous said...

"And even if Justice Breyer is right about that point, he has some responsibility to decide the case on principle."

Really? I've always taken it as the essence of his jurisprudence that he doesn't /decide/ cases on principle. Indeed, it was no less a luminary than Holmes who said that "general principles do not decide specific cases."

Now, one can disagree with Holmes but such a disagreement is a far cry from the notion that Breyer has a *responsibility* to decide the case on principle.

I personally do not think that any justice has a responsibility to decide their cases in such a way that they can be codified by law professors into nice little boxes called "principles".

Michael C. Dorf said...

TJ: Even if you're right that I'm being too hard on Justice Kennedy (and I do say that I agree with his substantive analysis of the issue before the Court), what I say would still apply to CJ Roberts and Justice Alito, who join his opinion.

Jimmyd: Yes, as an official matter, the Court only decides concrete cases, but the certiorari rules expressly provide that it grants cases for the purpose of resolving important issues of law, so the idea that they're just deciding the case has long been a fiction. The continuing vitality (or not) of the political process doctrine is a matter of some importance for other state affirmative action bans. Thus you misread me in thinking that I want a principle to put in a casebook or article. The country wants and deserves a principle to clarify and unify what federal law is--arguably the central function of the Supreme Court, as recognized since Justice Story's landmark opinion in Martin v. Hunter's Lessee, nearly 200 years ago.

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Joe said...

"Justice Kennedy really does seem to believe in letting the voters decide and this sentiment acts as a constraint."

In actual cases, he has yet to vote to support the voters who chose affirmative action. He concurred separately in Parents Involved to limit the majority because he noted some sort of race conscious public policy can be legitimate.

Still, the peon to democracy in the opinion the other day would sell better for some if you know he could find ONE case where it doesn't look like it is a one-way ratchet in this area.

Rose Warissa said...

If the ban you cite is merely applied to race, yes, it very well might be problematic. I think the problem might be that you have to see the reason why they were so concerned about these measures. fut 14 coins  elo boosting  fifa ultimate team coins  lol boost

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