If the Supreme Court's affirmative action jurisprudence were a Bond movie, it would be "Die Another Day." Or "Live and Let Die." Or ? well, you get the point.
For decades Justice Anthony Kennedy has been puzzling over how to kill affirmative action without delivering the death blow. Yesterday he got a step closer to an answer in the court's decision to uphold a popularly adopted Michigan constitutional amendment banning racial preferences in state hiring or education.
But what will be remembered from the case is probably the stirring dissent by Justice Sonia Sotomayor, the first beneficiary of affirmative action to defend the practice from the Supreme Court bench.
The case, Schuette v. Coalition To Defend Affirmative Action, arose after affirmative action at the University of Michigan was narrowly upheld in 2003, and the public responded with a ballot initiative in 2006. The coalition successfully challenged the amendment in court, convincing the U.S. Court of Appeals for the Sixth Circuit that the ban violated equal protection.
If the appellate decision strikes you as odd, it should. Affirmative action is a policy decision to be made by the government. In my view, the courts should stay out of that decision, allowing it when the state chooses it and not interfering if the state bans the practice. Seen in this light, the Supreme Court got it right by reversing the Sixth Circuit and reinstating the Michigan amendment.
The problem is that Supreme Court precedent more or less required the opposite result. In a series of cases that culminated in the 1981 decision of Washington v. Seattle, the court established what it called the "political process doctrine," which made it unconstitutional for states to make it harder for disfavored minorities than for anyone else to enact legislation serving their interests.
This, too, sounds odd -- after all, doesn't democracy automatically favor majorities over minorities? But the Seattle case illustrates what the court had in mind. The Seattle school board adopted mandatory busing to overcome a legacy of de facto segregation. Statewide voters then passed a ballot initiative banning busing. In effect, racial minorities were being told that if they were fortunate enough to win a political fight at the local level, it would be reversed at the state level, where minorities would almost invariably lose. The Supreme Court of a more liberal era found this reality to violate the principle of equal protection.
The Michigan statewide initiative paralleled the Washington state initiative ruled unconstitutional in 1981. Writing for a plurality composed of Chief Justice John Roberts, Justice Samuel Alito and himself, Justice Anthony Kennedy claimed that the Seattle precedent was inapposite. Although the reasoning is so convoluted that it's a bit hard to re-state intelligently, Kennedy argued that the Washington state busing ban, unlike the Michigan affirmative action back, "had the serious risk, if not purpose, of causing specific injuries on account of race."
Kennedy's claim is belied by the fact that there had been no legal segregation in Seattle and no proven record of systematic bias, circumstances which under today's law -- endorsed by Kennedy -- would actually have made the Seattle busing program itself unconstitutional. But no matter. Kennedy's aim was to make the precedent go away without overruling it, thus striking a blow against affirmative action without formally overruling progressive precedent.
To his credit, Justice Antonin Scalia was having none of it. The plurality "reinterprets 1/8the precedent 3/8 beyond recognition," he explained in his characteristic measured tones. In his view -- joined of course by Justice Clarence Thomas -- affirmative action is itself already unconstitutional. The Michigan voters who banned affirmative action were enacting the correct meaning of the Equal Protection Clause. "By adopting 1/8the Clause 3/8, they did not simultaneously offend it." Scalia would have overturned the Seattle case and those it relied on.
Justice Stephen Breyer concurred separately to say, reasonably enough, that he thought the state could either adopt or reject affirmative action as it wished. Motivated presumably by a pragmatic desire to preserve affirmative action and not alienate Kennedy in upcoming race-related cases, Breyer had to offer his own somewhat forced explanation for why the precedent didn't apply. He argued that the policymakers at the University of Michigan were appointed, not elected like the Seattle School Board, so the political process as such had not been distorted.
That left Justice Sotomayor, who, joined by Justice Ruth Bader Ginsberg, offered a lengthy cri de coeur in defense not only of the political process doctrine, but affirmative action itself. (Justice Elena Kagan was recused, hence the 6-2 total.) Sotomayor is, don't forget, only the third person of color serve on the U.S. Supreme Court. Justice Thurgood Marshall was educated in the era of segregation, not affirmative action, and Clarence Thomas famously reviles racial preferences.
Sotomayor went to Princeton in 1972, when it was hardly a bastion of female Nuyoricans (not that it is today). She had an almost unimaginably spectacular career there, graduating summa cum laude and winning the Pyne Prize, the highest undergraduate honor the college bestows, so her academic capabilities were clearly off the charts.
Nonetheless she's compared her experience to that of "a visitor landing in an alien country." That experience comes through in her dissent. "Race matters," she argued repeatedly, because of legacy of segregation, because of "persistent racial inequality in society" -- and "because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'" Her colleagues' belief that the way to get beyond racism is to ignore race is, she argued, "a sentiment out of touch with reality."
Sotomayor's dissent is one for the casebooks and the ages. It should be up to the voters to decide whether it turns out be a requiem for affirmative action -- not up to Anthony Kennedy.
To contact the writer of this article: Noah Feldman at email@example.com.