When the Supreme Court held de jure racial segregation of public schools unconstitutional in its 1954 Brown v. Board of Education decision, Chief Justice Warren’s opinion spoke for a unanimous Court. Four years later, in the face of defiance by segregationists in Little Rock, Arkansas, the Court was again unanimous. Indeed, the Little Rock case, Cooper v. Aaron, resulted in the onlyopinion ever signed by all nine Justices. Given the divisiveness of race in American history, throughout the civil rights era the Justices thought it important that the Court speak with one voice.
As yesterday’s ruling in Schuette v. Coalition to Defend Affirmative Action illustrates, so far as the Court is concerned, that era is long over. The eight participating Justices wrote five opinions, none of which enjoyed the support of a majority.
Some of that disagreement can be traced to an underlying conflict over affirmative action itself. More broadly still, the disagreement in Schuette continues a struggle over the legacy and continuing impact of the civil rights era.
The Rise and Fall of the “Political Process” Doctrine
The immediate issue in Schuette was the validity of a Michigan constitutional provision, adopted by a referendum as “Proposal 2” in 2006. Proposal 2 banned race-based and sex-based affirmative action by public institutions, including colleges and universities. The U.S. Court of Appeals for the Sixth Circuit found the provision invalid.
Three prior Verdict columns—two by Professor Vikram Amar (here and here) and one by me—explained why the result reached by the appeals court in Schuette is puzzling, at least at first blush. Supreme Court precedents over the last three and a half decades rarely even permit states to engage in race-based affirmative action. How, then, can a state be held to violate the Constitution when it chooses not to pursue such a program?
In answering that question, the appeals court focused on the level of government at which the policy decision was made. By deciding the issue as a state constitutional matter, the appeals court said Proposal 2 placed minority voters—who would benefit from the banned programs—at a disadvantage because they could no longer rely on the ordinary political process to secure such programs. The appeals court cited two Supreme Court precedents—the 1969 ruling in Hunter v. Erickson and the 1982 ruling in Washington v. Seattle School Dist. No. 1—which established this “political process doctrine.”
The Schuette Court fractured badly over the meaning and wisdom of that doctrine. Justice Kennedy wrote the lead opinion for himself, Chief Justice Roberts, and Justice Alito, reaffirming the results in Hunter and Seattle, but overruling the political process doctrine; Justice Scalia wrote a concurrence in the judgment for himself and Justice Thomas, disavowing Hunter and Seattle as inexplicable without the political process doctrine, which they found unjustifiable; Justice Breyer wrote a concurrence in the judgment adhering to the political process doctrine but finding it inapplicable to the facts before the Court because, as he saw things, prior to the ballot initiative, educational administrators, not voters, made the decision whether to employ race-based affirmative action, so the voters had not lost a political opportunity they had previously enjoyed; Justice Sotomayor wrote a lengthy dissent for herself and Justice Ginsburg, describing the political process doctrine as an essential component of civil rights era precedents invalidating formally race-neutral laws that had the effect (and often the purpose) of diluting minority voting strength; Chief Justice Roberts wrote a brief concurrence rejecting what he regarded as Justice Sotomayor’s characterization of opposition to affirmative action as racial discrimination. Justice Kagan might have written yet a sixth opinion, but she was recused.
Three Fault Lines in the Michigan Case
Although the ruling in Schuette is obviously important for Michigan and other states that have adopted state constitutional bans on affirmative action, its direct doctrinal impact is likely to be small. Since Seattle over thirty years ago, the Supreme Court has not relied on the Hunter/Seattle political process theory. To be sure, the Colorado Supreme Court did rely on Hunter/Seattle in invalidating that state’s constitutional ban on local laws barring sexual orientation discrimination, but in affirming that result in the 1996 case of Romer v. Evans, the U.S. Supreme Court provided a different justification, specifically declining to invoke the political process doctrine.
Despite the relatively low doctrinal stakes in Schuette, the case exposes three important fault lines running through the Roberts Court.
First, and most obviously, the case highlights the Justices’ contrasting approaches to the constitutionality of race-conscious government action. Writing for a plurality in Parents Involved in Community Schools v. Seattle School Dist. No. 1 in 2007, Chief Justice Roberts summed up the position of conservatives who read the Constitution to embody a principle of “color blindness”:“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In an obvious reference to that line, Justice Sotomayor’s dissent in Schuette offered the contrary view. She wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.”
Although Justice Kennedy invariably votes with his fellow conservatives to disallow race-based affirmative action programs, he does not always join their categorical endorsement of color-blindness. For example, in Parents Involved, he joined some of the opinion of the Chief Justice, but not the part containing his admonition to “stop discriminating.” Thus, one might think it significant that in Schuette, Chief Justice Roberts and Justice Alito joined Justice Kennedy, rather than the more sweeping opinion of Justice Scalia. Does that intra-conservative cleavage suggest that the Chief Justice and Justice Alito have moved closer to Justice Kennedy’s somewhat more moderate understanding of color-blindness?
That is a possibility, but a more likely explanation would point to a second fault line. Justice Scalia’s separate opinion in Schuette is of a piece with various other opinions by him and Justice Thomas criticizing Chief Justice Roberts for what they regard as unprincipled incrementalism: The Chief Justice frequently distinguishes cases that stand in the way of results he wants to reach, rather than forthrightly overruling them. Justices Scalia and Thomas regard this approach as timid and disingenuous.
The third fault line on display in Schuette runs between the conservative Justices who believe that the concerns that gave rise to Hunter (housing discrimination) and Seattle (desegregative busing) have largely faded into history, and the liberal Justices who regard the quest for racial equality as unfinished business. Justice Sotomayor was unable to persuade her conservative colleagues to view Michigan’s Proposal 2 as the equivalent of disenfranchisement ploys like literacy tests, grandfather clauses, and ever-shifting electoral district lines because the Roberts Court conservatives view such ploys themselves as ancient history.
It should surprise no one that Justices who think that the Voting Rights Act’s coverage formula is unconstitutionally outdated—as a majority ruled last year in Shelby County v. Holder—would reject out of hand the comparison of a state’s prohibition on race-based affirmative action to the preservation of American apartheid.
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back in the early or mid 70s, I can remember a discussion in which Bayard Rustin said that we needed to change the basis of affirmative action from race to economics or society would strike down affirmative action. I can remember my shock at the time. I am the only then adult still alive from that discussion so there is no one with whom I can discuss the rest of what he said, but it looks like Bayard was right again.