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.