Should Courts Stay Out of the Race Business?

University of Michigan students protest affirmative action outside the Supreme Court. (Molly Riley/Reuters)

Does anybody else think it could be a problem to put the question of minority rights to a majority vote in state initiatives?

Six justices of the Court don’t—and three of them actually think we’d all be better off if we got courts out of this whole race business and let majority vote settle the whole thing.

The three-justice plurality—Justice Anthony Kennedy, Chief Justice John Roberts, and Justice Samuel Alito—made this strange suggestion Tuesday in their opinion on Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary. Schuette should have been an easy case, and I very much fear it will soon make very bad law. 

Schuette arose because opponents of affirmative action at the University of Michigan lost a split decision (Grutter and Bollinger) at the Supreme Court in 2003. The Court held, 5-4, that affirmative action in admissions was not unconstitutional, as long as race was not given a dispositive role in individual decisions. Frustrated, the opponents then turned to the initiative process, and in 2006 they persuaded 58 percent the state voters to enact Proposal 2, which said that the state schools “shall not discriminate against, or grant preferential treatment to, any individual on the basis of race, sex, color, ethnicity, or national origin” in hiring, contracting, or education. Michigan’s race-conscious admissions program was out of business.

The Coalition, and a number of other plaintiffs, went to court to block Proposal 2. The Sixth Circuit Court of Appeals, in a bitterly contested en banc decision, said that Proposal 2 violated something called the “political process doctrine” (or the “Hunter-Seattle doctrine”) which it summarized as saying that “minority groups may meaningfully participate in the process of creating [the] laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.” The doctrine arises from cases during the Warren and Burger Courts that concerned popular votes, phrased in racial terms, that abolished programs to fight housing discrimination or promote school integration. The Court hasn’t struck down a law under the doctrine in nearly 30 years, but it hasn’t overturned the prior cases either.

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But there’s the problem: Under current precedent, it’s impermissible to claim that higher-education admissions programs are “issues of importance” to minority groups in particular. From Board of Regents v. Bakke in 1977 to Grutter a quarter century later, the Court has insisted that the only interest these programs can serve is a general interest—the interest of all students in a diverse educational experience.

That’s what should have made Schuette an easy caseHere’s how a busy Court could have worded its opinion reversing the Sixth Circuit: “Were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.” Whether you agree with the ideas behind it or not, that is an admirably clear and utterly correct statement of present law. It comes from the concurrence by Justice Antonin Scalia, joined by Justice Clarence Thomas. 

The plurality never alluded to this problem. Instead, Justice Kennedy did what we might call “the full Kennedy,” complete with grand phrases and the mighty sweep of history. His opinion commands three votes—his own, Chief Justice John Roberts, and Justice Samuel Alito, making it a plurality. “[F]reedom,” he says, “does not stop with individual rights.” It “embraces, too, the right of citizens to . . . act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom every greater and more secure.” Courts have no business second-guessing majority votes on racial matters: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of sensitivity on decent and rational grounds.”

The plurality then suggested that racial claims generally would be better in the political sphere than in the courts. Just as it was during my segregated childhood, race would again be a matter that it's better not to discuss. For one thing, if courts hear highly charged race cases, they would be forced to decide who belongs to a race. “[I]n a society in which those lines are becoming more blurred, the attempt to define race-based categories . . . raises serious questions of its own.” And courts would then have to decide which policies were in minorities’ best interest, which would create “incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage.”

Instead, the opinion hinted, judges should stay away from race altogether. Or, as Justice Sonia Sotomayor wrote in an impassioned dissent (joined by Justice Ruth Bader Ginsburg), “My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out.”

Sotomayor’s dissent is a major statement of her philosophy. In length, it equals all the other opinions combined. That probably accounts for how much time it took to decide Schuette, which was argued in October.

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Before I get to it, though, let’s run the entire lineup. Kennedy, as noted, wrote an opinion for himself, Roberts, and Thomas; Scalia wrote a concurrence in which he urged the Court to overrule the “political process” cases altogether (and, for that matter, Bakke and Grutter); Justice Stephen Breyer concurred on the baffling grounds that voters may violate Equal Protection when they remove decision-making power from one political body (a city council, say) and give it a higher one ( a statewide majority of voters), but they can’t violate it when they remove that power from an administrative body (like a university) and give it to a higher one. Justice Elena Kagan recused herself, presumably because she helped prepare the federal government’s work as an amicus in the case.

Sotomayor's entire dissent is worth reading, but two things stand out. She is directly tackling the chief justice’s clear aversion to affirmative action and, indeed, civil-rights statutes. On Tuesday, she parodied his much-praised and reviled words in an earlier school-integration case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Sotomayor responded,

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

These words clearly drew blood from the chief. In a two-page dissent devoted entirely to rebutting Sotomayor, he plaintively wrote, “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Anyone who has read Sotomayor’s memoir, My Beloved World, knows that she writes comfortably in the personal vein. Her Schuette opinion included this paragraph, surely informed in part by her own experience with racial exclusion and affirmative action:

[R]ace matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. 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.”

It’s not hard to imagine a young Latina woman at Princeton, and later at Yale Law School, wondering whether she belonged—and wondering today whether her colleagues on the Court believe that outsiders like her merit any protection from the majority’s will.

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.


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