Supreme Court Declares States Can Bar Racial And Other Preferences In University Admissions

Supreme CourtI was just on CNN discussing the decision in Schuette v. BAMN, reversing the United States Court of Appeals for the Sixth Circuit and declaring that the citizens of Michigan have the constitutional authority to prohibit racial and other preferences in university admissions. We addressed this case this term in my Supreme Court class and the students voted not only in the same way as the majority today but predicted this result. What was surprising was the vote — 6-2. Only Justice Sotomayor and Ginsberg voted to upheld the Sixth Circuit.

This is clearly a breakthrough decision for those who have opposed racial and other preferences in admissions. In the past, these issues have inevitably ended up in the courts as the final arbiter of the constitutionality of affirmative action programs. Now, the Supreme Court is saying overwhelmingly that citizens can make these decisions for themselves. It creates a clear avenue by which affirmative action could be curtailed by direct action of the voters — bringing clarity that many have sought for decades of conflicted judicial rulings. Seven states have similar rules but this decision is likely to encourage others to follow suit.

Justice Kennedy wrote the main decision, which limited the political-process line of cases represented by Parents Involved in Community Schools v. Seattle School District. Kennedy stressed that “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” In the view of the majority “[t]here is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters. . . Democracy does not presume that some subjects are either too divisive or too profound for public debate.”

Justice Scalia wanted to go even further and get rid of much of that jurisprudence. However, this decision is potentially sweeping enough for most of the justices. Chief Justice Roberts and Alito joined Kennedy though Roberts filed a concurring opinion. Thomas joined with Scalia in his concurrence in arguing to go all the way in gutting the political-process line of cases. Justice Breyer concurred in the judgment while Justices Sotomayor and Ginsburg dissented. Justice Kagan probably would have joined in that dissent but recused herself. Even with Kagan however the vote would still have been lopsided at 6-3. Instead, it stands at 6-2. That is a sharp departure from the historically razor thin margins in cases like Grutter, Gratz, and others.

Sotomayor wrote a 58 page dissent (longer than all of the other opinions combined) and objected that the Court needed to limit voters because “without checks, democratically approved legislation can oppress minority groups.”

At 58 pages, Sotomayor’s dissent was longer than the combined length of the four opinions in support of the outcome.

In our vote, the Supreme Court seminar voted 11-4 in favor of reversing the Sixth Circuit and 11-4 in predicting that that “other Supreme Court” would also reverse. The United States Supreme Court (while producing multiple opinions) proved less ideologically divided in the outcome than the Sixth Circuit. On the lower court decision upholding the dismissal of the action, the eight judges in the majority were nominees by Democratic presidents while the seven judges in dissent were appointed by Republican presidents.

Here is the opinion.

689 thoughts on “Supreme Court Declares States Can Bar Racial And Other Preferences In University Admissions”

  1. Schulte sed: “…the postal service of the United States evolved from stampless letters, whose cost was borne by the receiving person, to letters carried by private mail carriers and provisional post offices, and then on to letters bearing adhesive postage stamps.”
    So you do believe in evolution.

    You know, former Illinois Governor Rod Blagoevich could run down the name of every American President and recite a few salient details about them. It always seemed like a parlor trick to me when he did it; like they were empty calories of knowledge.

    Look into what Ben Franklin had to say about the importance of the postal service, in fact just look into Ben Franklin, and get back to us.

  2. Yes, Filner was crazy. Maybe crazier than Bundy because Filner lacks any excuse of just being an unsophisticated man. But other than to himself, he couldn’t have done too much damage to the city. Wasn’t he out in less than six months and four of those months he had everyone so mad that all he could do was hide out in his office and interview (let’s hope male) attorneys.

    Don’t worry about trying to catch anything on Fox. The story blew up so big, I’m sure they had to handle it forthrightly. Quickly, but forthrightly.

  3. Hi Feynman:

    I didn’t watch Megyn last night, and I only catch Hannity on the radio when I’m driving. But I’ll try to find out.

    It kind of reminds me of the San Diego mayor, Bob Filner, who pled guilty for harassing women with the “Filner headlock.” Apparently he got completely out of hand. Most of his supporters fled, with a few torn over separating his politics from his behavior. He was a vile man whose behavior would have tainted any issue he tried to address, had he stayed on in office, as he at first intended.

  4. Karen,

    I’m almost beginning to feel sorry for Mr. Bundy. That “almost” is heavily burdened with lots of “howevers”.

    I think he has lost all reasonable supporters like you, and is now being used only for entertainment value. OTOH, he is also seduced by the attention. Now a nice thing to do is to have Megyn give him a call and suggest that he’s done his job and he can withdraw from the field. But you know those independent sovereign men – you can’t tell them anything.

    Anything notable on Hannity and Megyn last night?

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