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Melissa Hart is an Associate Professor of Law and the Director of the Byron R. White Center at Colorado Law, University of Colorado Boulder. I do not like the Schuette case. Of course the Supreme Court had to take it.
If you are tired of Court watchers who like to hedge their bets, you might appreciate this: I predict a reversal here. It seems unlikely that the Court granted certiorari in order to congratulate the Sixth Circuit on its keen legal insight.
John Neiman is Solicitor General for the State of Alabama, which joined Arizona’s amicus brief supporting the petitioners in Schuette. The views expressed in this post are his own.
In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will review an eight-to-seven en banc decision of the Sixth Circuit holding that voter initiative Proposal 2 – which amended the Michigan Constitution to prohibit affirmative action – was invalid under the political structure theory of equal protection.
The path from a federal government of limited powers to today’s leviathan is littered with familiar mileposts: the Seventeenth Amendment’s removal from state legislatures of the power to appoint senators; Wickard v. Filburn‘s blessing of the modern regulatory state; Chief Justice Roberts’s discovery within the Affordable Care Act of a “tax” that even its proponent-in-chief disavowed.
On October 15, the Court will hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, in which it will consider whether Michigan violated the Equal Protection Clause when it amended its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.
Schuette v. Coalition to Defend Affirmative Action, which is now before the United States Supreme Court, illustrates all the treacherous crosscurrents in modern equal protection law.