The Supreme Court Takes a Further Swipe at Affirmative Action: 4 Blunt Points

Supreme Court Justice John Roberts Photograph by Jocelyn Augustino/Redux

Chunk by chunk, the Supreme Court led by John Roberts chips away at the legal foundation of race-conscious policies that were meant to boost the fortunes of minority group members. The justices did their latest bit of incremental demolition by ruling (PDF) 6-2 that Michigan voters were within their rights to ban racial preferences at state-run universities. The dispute produced acrimony among the justices but not a clear majority opinion. To make sense of a splintered high court decision, consider four blunt points.

1. Once again, Chief Justice Roberts steered a fractious bench toward a conservative result. As I noted in a recent piece about Roberts, the chief justice succeeds by navigating around and past the dueling passions of his foes on the left and his putative allies on the right. In the Michigan case, Schuette v. Coalition to Defend Affirmative Action, he used his chief’s authority to assign the main opinion-writing duty to Justice Anthony Kennedy, who crafted a careful (if slightly tortured) legal essay vindicating a state’s right to reject affirmative action in higher education. Kennedy stopped short of saying government institutions can never use racial preferences. Roberts and Samuel Alito signed the Kennedy opinion.

2. Antonin Scalia and Clarence Thomas wanted to go much further. In a characteristically blistering concurrence, Scalia indicated he’d do away with all officially sponsored affirmative action. Thomas agreed. If Roberts had permitted Scalia to take a crack at the majority, he’d probably have lost Kennedy, as well as liberal Justice Stephen Breyer—who wrote his own concurrence agreeing in the most attenuated fashion with Kennedy’s conclusion, but not his reasoning. In other words, Roberts held together six votes around the fragile Kennedy plurality opinion. This didn’t please Scalia, who believes the Constitution demands “color blind” public policies and demands them right now. At least for the moment, Scalia can’t get five votes for his position. Willing to move more slowly, Roberts nudged the court a further step closer to the color-blind goal.

3. Roberts’s conciliation has its limits. In dissent, Sonia Sotomayor suggested that the conservatives were “out of touch with reality” and willing to “wish away, rather than confront” racial inequality in America. (Ruth Bader Ginsburg joined the dissent. Without explanation, Elena Kagan didn’t participate, presumably because she had worked on the case as solicitor general before her appointment to the court.) Roberts took the trouble of adding a two-page concurrence that read like a scolding teacher’s note to Sotomayor. “People can disagree in good faith on this issue,” Roberts wrote, but it “does more harm than good to question the openness and candor of those on either side of the debate.”
4. Liberals need to reconsider their strategies on equality. The Sotomayor dissent, which she summarized from the bench in a gesture that traditionally hints that a justice feels especially exercised about a case, signaled more than anything else the waning fortunes of racial preferences in public policy. It’s notable that Breyer went along with Kennedy, Roberts, and Alito in saying that the Constitution neither requires affirmative action nor bars a state from banning it.

As my colleague Greg Stohr of Bloomberg News noted, the Michigan ruling may spur additional states to mount similar initiatives:

The ruling has both symbolic and substantive significance. A decade ago, the University of Michigan won a Supreme Court decision that let institutions across the country continue to use race as an admissions factor. The survival of the voter-approved initiative means that ruling is nullified for the university that secured it. Black enrollment is down about 30 percent at the undergraduate and law schools since the measure took effect, according to the university’s figures. Michigan is one of 10 states where race-conscious admissions are barred at public institutions, by ballot initiative or other government action.

Liberal policy experts such as Richard Kahlenberg of the Century Foundation advocate phasing out race-based admission policies. One recent study (PDF) Kahlenberg did with Halley Potter found that “seven out of 10 leading public universities were able to maintain, or even increase the proportion of African American and Latino students among their ranks by replacing race-based preferences with strategies that target socio-economic inequality.”

The decision in the Michigan case “presents a new challenge for colleges committed to enrolling diverse student populations and reinforces the court’s decision in Fisher v. University of Texas that universities have ‘the ultimate burden of demonstrating, before turning to racial classifications, that available, workable, race-neutral alternatives do not suffice,’” Kahlenberg said via e-mail. “Together, these rulings are a call to action for college leaders and administrators to more aggressively pursue race-neutral policies that give all disadvantaged students equal opportunities.”

As Chief Justice Roberts leads the Supreme Court toward eroding traditional affirmative action, Kahlenberg’s response sounds like wise advice from an advocate and scholar who cares about equality.

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