People wait in-line to enter the U.S. Supreme Court to hear oral arguments April 22, 2014 in Washington, DC.
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Affirmative action ruling: A victory for subtlety

Updated

The Supreme Court on Tuesday dove into the murky waters of affirmative action, and the result was déjà vu. As it has in other recent cases, the court’s lead opinion claimed the middle ground but in fact drove the law to the right.

The result: Statewide bans on affirmative action are all but bulletproof from here on out, even though Justice Anthony Kennedy, who wrote the opinion, suggested otherwise.

In Schuette v. BAMN, the case decided Tuesday, the court was considering Michigan’s ban on affirmative action in college admissions. For years, Michigan’s state universities considered race as a “plus” factor, but in 2006 voters amended the state constitution to forbid that practice. The question for the court: Was that ban unconstitutional?

Whatever one thinks about affirmative action in general, the Supreme Court wasn’t writing on a clean slate in resolving this particular question. In cases from the 1960s to the 1980s, the court considered state laws that overturned local laws favoring minority groups – for example, laws ordering public-school busing – and made it impossible for minorities to obtain favorable local legislation. Those sorts of laws, the court wrote, are unconstitutional if they “subtly [distort] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”

Opponents of Michigan’s affirmative-action ban argued that the ban is unconstitutional under those precedents. The Michigan regime, they said, saddles minorities with a special burden no one else faces when dealing with admissions policies. Those seeking, for example, a preference for admitting student-athletes or “legacy” applicants could take their case to a school directly, while those who want a racial preference would have to amend the state constitution.  

In today’s decision, the Supreme Court splintered on that claim: Two justices (Sotomayor and Ginsburg) agreed the Michigan law was unconstitutional. Two (Scalia and Thomas) attacked affirmative action in harsh terms and would have overruled the earlier cases altogether.

The lead opinion, meanwhile, staked out what it said was a middle ground. Justice Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito, refused to overrule the earlier cases – or so he said. But he then reinterpreted those cases in a way that effectively erases them from the books.

According to Kennedy, the earlier decisions forbade state interference with local laws protecting minorities only because the local laws at issue were designed to undo “specific injuries from hostile discrimination.” In other words, where a locality adopts a race-conscious policy to fix legal segregation or other explicit government discrimination, a state cannot necessarily overrule it and require even-handedness. But in every other circumstance, the state can do so – even if that means minorities end up facing the very legislative disadvantages the earlier decisions said were impermissible.

That new approach likely is the nail in the coffin for efforts to challenge bans on affirmative action in college admissions.

That’s because schools don’t use race as a plus factor to remedy government-sanctioned segregation – at least, not recent government-sanctioned segregation. They do it instead to counteract subtler disadvantages faced by minority applicants, and to diversify the student body. But as far as Kennedy is concerned, that isn’t enough: Unless proponents can show that schools are considering race as a way to counteract Jim Crow laws – something they can’t show – their affirmative-action policies can be abolished by majority vote. 

Kennedy thus torpedoed several decades of precedent while claiming not to do so – a familiar phenomenon of late.

Whatever the merits of that approach, Justice Scalia wasn’t buying it. Instead, in classic Scalia form, he unloaded with both barrels. His concurring opinion called the earlier cases protecting local affirmative-action policies from state interference “sorry,” “appalling,” and “absurd.” He attacked Kennedy for refusing to overrule them. And he said the dissenting opinion’s willingness to strike down a state policy requiring racial evenhandedness was “shameful.” 

Those are uncommonly strong words for a judicial opinion, but they’re par for the course for Scalia.

But then he went even further: He closed by writing that state affirmative-action bans should be permissible “regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.”

That is a bold statement, as an example illustrates. Imagine if a state university began using race as an admissions plus-factor, and a majority of state legislators banded together and said publicly, “we have to end this policy because we want our schools to stay white and too many minority students are getting in.” The legislature then passed a law banning affirmative action in college admissions. Scalia’s opinion strongly suggests that would be just fine.

It’s bizarre to think that would be the law. And it’s not, at least for now: Scalia’s opinion attracted only one other vote, while Kennedy carried the day. Call it a victory for subtlety – for better or for worse.

Dominic Perella is a partner in the law firm of Hogan Lovells, where he specializes in Supreme Court and appellate litigation.

Anthony Kennedy, John Roberts and Supreme Court

Affirmative action ruling: A victory for subtlety

Updated