“It has come to this,” Justice Scalia begins his devastating concurring opinion in Schuette v. Coalition to Defend Affirmative Action, referring with near-boiling incredulity to the fact that the Court was required to “confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself.”
The plaintiffs, you will recall, argued that Michigan’s Proposition 2 (passed with a 58% majority in 2006), which amended the state constitution to prohibit state agencies from giving preferential treatment based on race, was unconstitutional because it made it more difficult for minorities to achieve government policy that “inures primarily to the benefit of the minority” or that “minorities … consider” to be “in their interests.” (If you don’t recall the debate over this case, see my analysis of “The Five Fallacies Of Schuette v. Coalition to Defend Affirmative Action.”)
Because the Court contains liberals who increasingly seem to live in an alternate universe, the question did not of course answer itself. By a 6-2 vote, however, the Court did manage to conclude that prohibiting discrimination is not discriminatory. The opinion for the Court was written by Justice “Swingvote” Kennedy, joined by Chief Justice Roberts and Justice Alito. Justice Scalia’s concurring opinion, joined by Justice Thomas, is a jewel, destroying the reasoning of the plurality as thoroughly as the dissent written by Justice Sotomayor, joined by Justice Ginsburg. Justice Breyer surprisingly sided with the plurality in a largely incomprehensible separate concurrence. (Does he really believe that, for example, data demonstrating low minority scores in math and reading is relevant to the question of whether states may prohibit judging minorities by different standards?) Justice Kagan recused herself.
Those who believe discrimination on the basis of race is wrong will be relieved that the Court has now held that states may prohibit it by amending their constitutions with provisions that closely echo the intent and text of the 14th Amendment. But anyone seeking a compelling principled argument, or even basic coherence, in “Swingvote” Kennedy’s opinion will be sorely disappointed, and even more disappointed that Chief Justice Roberts and Justice Alito felt compelled to join it rather than Justice Scalia’s much more powerful concurrence (which, of course, would have made it the Court’s opinion, not a concurrence).
Schuette was ostensibly not about either the constitutionality or even the merits of race-based affirmative action. It turned instead on the “political process” doctrine from two earlier cases holding, with a number of qualifications, that the political structure may not be changed in manner making it more difficult for minorities to achieve what is, or what they believe is, in their interest. Justice Scalia argued persuasively that those cases should have been forthrightly overturned, but forthrightness is largely a stranger to Justice Kennedy, who left the shell but little more of those precedents standing.
Others are more qualified (and have more space and time) than I to delve into the weeds of “political process” analysis, but I found one element of Justice Kennedy’s argument against it particularly striking and deserving of special mention. He is so intent on rejecting it here that he doesn’t seem to recognize that his arguments actually undermine his unwillingness in other cases (Grutter and Fisher, for example) to reject race preferences altogether. A few examples:
• “In cautioning against ‘impermissible racial stereotypes,’ this Court has rejected the assumption that “members of the same racial group–regardless of their age, education, economic status, or the community in which they live– think alike, share the same political interests….”
• Rejects the “demeaning notion that members of . . . defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens”
• “… if it were deemed necessary to probe how some races define their own interest in political matters, [it would be necessary] to define individuals according to race.”
• “Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.”
Why can Justice Kennedy not see that the “diversity”-justified racial classification and preference that he continues to support does all that, and much more?
And speaking of inconsistency, let us not forget Justice Breyer, who concurred in the result even though he approves of the “political process” doctrine. It reflects, he wrote, “an important principle, namely, that an individual’s ability to participate meaningfully in the political process should be independent of his race. [Racial minorities] must have the same opportunity as others to secure through the ballot box policies that reflect their preferences.” [Emphasis added]
For Breyer, as for other liberals, a minority individual may be given preferential treatment so that he can have “the same opportunity as others … independent of his race.”
Show Breyer a city on a hill based on an important principle, and I’m sure he’d be willing to destroy it in order to save it for you.
