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Counting the votes: Today’s affirmative action argument, in Plain English

In late June, the Court ordered a lower court to take a tougher look at the University of Texas’s consideration of race as a factor in its admissions process, but it allowed the program to survive, at least for now.  Today the issue before the Court was different, and the measure being challenged was in a sense the opposite: the Court heard oral argument on whether an amendment to the Michigan constitution that bans (rather than encourages) the use of affirmative action at public universities violates the Constitution.   Going into the oral argument, it seemed very likely that at least the five most conservative Justices on the Court would uphold the ban.  That may ultimately be the result, but the case may also be less of a cakewalk for the state than it might have expected. 

Arguing on behalf of Michigan, state solicitor general John Bursch seemed to make a fair amount of headway during his time at the lectern.  He acknowledged right off the bat that “diversity on campus is a goal that should be pursued,” but he framed the question before the Court as whether a provision of the Michigan constitution requiring (in the state’s view) equal treatment for all violates the Constitution – which, he argued, it does not.  Michigan voters enacted the amendment, he suggested, “to move past the day when we are always focused on race.”   He also argued that the amendment was spurred by other alternatives that could result in a diverse student body without considering race – for example, eliminating special preferences for the children of alumni or focusing on socio-economic status rather than race.  (The former suggestion led Justice Sotomayor to lament that minorities “finally get in, they finally have children and now you’re going to do away [with] that preference for them.”)  And Bursch cautioned that, if the challengers were to prevail, the Court’s decision would potentially place a host of federal laws, including the Fair Housing Act, in jeopardy because those laws may forbid states from considering race in various ways too.

Justice Sonia Sotomayor and Ruth Bader Ginsburg left little doubt that they would vote to strike down the ban, while Justices Stephen Breyer, Samuel Alito, and Antonin Scalia did not ask Bursch any questions at all, and the Chief Justice’s question for him can only be described as a softball.  (Justice Clarence Thomas did not ask any questions in the oral argument as usual, and Justice Elena Kagan is recused from the case so she did not participate, presumably because she was involved in the case when she was the Solicitor General of the United States.)

Justice Anthony Kennedy – who is the ideological center of the Court, though he does not “swing” back and forth in any sense – was a somewhat tougher audience than Bursch might have expected.  Like Sotomayor, he expressed doubts about whether this case was any different from Washington v. Seattle School District No. 1, in which the Court struck down a voter initiative that prohibited mandatory busing designed to promote racial integration in public schools.  The Court reasoned in that case that laws which restructure the political process to create obstacles for a minority group to gain access to the political system are constitutionally suspect.  It would be significant if Kennedy were to conclude that this Michigan case was controlled by the earlier busing decision:  he would likely have to choose between (a) voting to strike down the ban (even if, in the abstract, he would otherwise support it) to conform with the Court’s earlier cases; or (b) upholding the ban on the ground that the busing case is no longer good law – a result he would probably like to avoid.  Odds are that he will go with a third option – concluding that the cases are sufficiently different to justify upholding Michigan’s ban.

Next up, arguing on behalf of one group of challengers, Mark Rosenbaum clearly saw the lay of the land from the first twenty-five minutes or so of the argument.  He addressed his very first point to Kennedy, telling him that there are no significant differences between this case and the busing case; the Court could rule in the state’s favor only by overruling that earlier decision.  And he fended off hypotheticals from some of the more conservative Justices – including the Chief Justice and Justice Samuel Alito – suggesting other scenarios in which authority to implement affirmative action might constitutionally be moved from one level of the government to another, as happened here when the Michigan amendment banned a program implemented by state universities.  The problem, he emphasized, with enshrining a racial classification within the state constitution is that it “takes the ordinary political process to the extraordinary political process.”

During the oral arguments of Rosenbaum and Shanta Driver, who argued on behalf of another set of plaintiffs challenging the ban (the Coalition to Defend Affirmative Action), the Chief Justice and Justice Scalia seemed to be solidly supportive of the state.  The Chief Justice – who famously wrote a few years ago that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” – suggested to Rosenbaum that the whole point of the Equal Protection Clause was to take race off the table, while Scalia emphasized that the ban was not a racial classification, but instead was a prohibition on racial classifications.  The Chief Justice also vigorously challenged one of the premises of Driver’s rule, which would look at whether the law at issue takes a benefit for minorities and then restructures the political process to make it more difficult for minorities to secure that benefit.  He suggested that it is in fact “open to debate” whether preferential treatment actually benefits minority groups; “Do we have to assume . . . that these definitely are beneficial?”  When Driver countered that ninety percent of African-American voters in Michigan voted against the ban, the Chief Justice shot back, “[t]here may be a difference between popularity and benefit.”

But much of the discussion during the rest of the argument centered on a question that could provide a possible, if narrow, path to victory for the challengers to the ban but probably won’t:  when does the political restructuring doctrine apply to make unconstitutional state laws that ban programs involving race?  Justice Alito described a scenario in which a university faculty has authority to adopt an affirmative action policy, and then does so, but the decision could be overruled by the dean, the university president, the university’s governing board, the legislature, or even through a constitutional amendment.  He then asked the challengers to explain “[a]t what point . . . the doctrine kick[s] in” to make it unconstitutional to end the program.

Justices Kennedy and Breyer echoed this question, with Kennedy asking the challengers to clarify “at what point [in the process] . . . your objection take[s] place” and Breyer suggesting that at a minimum a constitutional amendment would be a “restructuring” of the political process.  Breyer acknowledged that the state would lose under that rule, “but there would be a limitation on the extent to which the people have the right to move powers around. “  Breyer – a member of the Court’s more liberal bloc – is a vote the challengers absolutely cannot afford to lose.

With the Chief Justice and Justices Scalia and Thomas apparently lost causes, can Sotomayor and Ginsburg convince Breyer and either Kennedy or Alito to join them in voting to strike down the ban?  In the end, it could be a tough sell; whatever the result, we will be back to cover it in Plain English.

Recommended Citation: Amy Howe, Counting the votes: Today’s affirmative action argument, in Plain English, SCOTUSblog (Oct. 15, 2013, 9:49 PM),