Schuette v. Coalition to Defend Affirmative Action, in which the Court is considering the constitutionality of Michigan’s ban on the use of affirmative action by public universities, continues to garner commentary.  At The Economist’s Democracy in America blog, Steven Mazie predicts that “[w]hen the Michigan ban is upheld in June, racial preferences will remain constitutionally permissible elsewhere, but the practice seems likely to peter to a halt well in advance of the 2028 date by which Sandra Day O’Connor once predicted it would no longer be necessary.”  And at, Leroy Goldman observes that Justice Anthony Kennedy “may be looking for a way to distinguish Schuette from the [Court’s] prior precedents”; “[i]f so,” he continues, “it will tell us that the battles will continue, but the outcome of the war hangs in the balance. And it will tell us that Chief Justice Roberts has not yet been able to persuade a majority of the court that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

At Talking Points Memo, Sahil Kapur discusses the oral argument in McCutcheon v. FEC, the challenge to the constitutionality of aggregate limits on campaign contributions, and suggests that if the Chief Justice is the pivotal vote, he may – as in the challenge to the individual mandate – “be forced to choose between upholding the law with the four justices on his left or tearing it down with the four justices on his right.”

Posted in Round-up

Recommended Citation: Amy Howe, Wednesday round-up, SCOTUSblog (Oct. 23, 2013, 2:20 PM),