You might have heard that the Supreme Court ruled 6-2 today that states have the right to ban racial preferences, euphemistically known as “affirmative action,” in public-university admission, but that’s not quite right. On that point the justices (save for Elena Kagan, who sat the case out) were unanimous. “When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy,” wrote Justice Sonia Sotomayor in a dissent joined by Justice Ruth Bader Ginsburg.
But in the case styled Schuette v. BAMN, Sotomayor endeavored to make nothing into something. She and Ginsburg would have upheld a decision by the Sixth U.S. Circuit Court of Appeals that held illicit the method by which Michigan’s voters accomplished that end: a ballot initiative, approved in 2006, that amended the state constitution to bar racial discrimination.
We noted the case, and offered a lengthy analysis, back in 2011, when a three-judge Sixth Circuit panel first ruled in favor of the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. We pegged the case then as a likely one for the high court to take up, and we didn’t expect the Sixth Circuit’s ruling to stand. But we’re disappointed the court didn’t repudiate BAMN’s arguments more clearly.
The background, in brief: As there was no colorable argument that the substance of the Michigan amendment was unconstitutional, BAMN invoked what the appellate court called the “political process doctrine.” It rested on two prior cases, Hunter v. Erickson (1969) and Washington v. Seattle School Dist. No. 1 (1982), in each of which the high court struck down a ballot measure repealing and banning a policy that, as Justice Harry Blackmun put it in Seattle, “inures primarily to the benefit of the minority.” In Hunter, the policy in question was a fair-housing ordinance enacted by the city council; in Seattle, a forced-busing program instituted by an elected school board.
The six justices who voted to reverse the Sixth Circuit and let the Michigan amendment stand split 3-2-1 on the grounds for doing so. The result is a clear outcome but a doctrinal muddle. We thought it would be amusing and enlightening to go through the four main opinions in descending order of clarity.
Clearest of all is Justice Antonin Scalia’s concurrence in the judgment, joined by Justice Clarence Thomas. “It has come to this,” Scalia begins portentously. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”
Scalia and Thomas’s view, thus far joined by no other sitting justice, is that racial discrimination in public-university admissions is flatly unconstitutional. The prevailing view on the court is that such discrimination is permissible, but only for the purpose of realizing “the educational benefits” of a “diverse student body,” as Justice Sandra Day O’Connor put it in Grutter v. Bollinger (2003).
As Scalia notes: “Were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.” The Sixth Circuit had to reach just that conclusion in order to fit the Michigan amendment into the political-process doctrine.
Thus, as we noted in 2011, Grutter and BAMN were on a collision course. Either the racial preferences the court upheld in Grutter were unconstitutional or the political-process doctrine didn’t apply. Scalia and Thomas recognized this contradiction squarely and would have dealt with it by both holding the preferences unconstitutional and overturning Hunter and Seattle.
Justice Stephen Breyer concurred in the judgment on much narrower grounds. He was part of the Grutter majority in 2003 and still thinks racial preferences are constitutionally permissible. He ducked the question of whether the political-process doctrine applied to the substance of the Michigan amendment by saying it didn’t apply to the process. Because racial preferences were imposed by unelected university administrators, he argued, the process change isn’t a “political” one at all. It appears to be a way of evading the central questions of the case, but it does have the virtue of being relatively simple.
Then there’s the Sotomayor dissent, which begins as follows: “We are fortunate to live in a democratic society. But…” An empty piety, followed by an equivocation, followed by a total of 58 pages – you know this is going to be a tough slog.
The most quoted part of Sotomayor’s opinion is this: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This is a rejoinder to Chief Justice John Roberts’s assertion, in Parents Involved v. Seattle School Dist. No. 1 (2007), that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Roberts in turn rebutted Sotomayor in a separate concurrence to today’s decision, which we’re leaving out of our ranking by clarity.)
Roberts’s statement was trivially true, which means that Sotomayor’s defies logic. Her argument amounts to an assertion that a ban on racial discrimination is a form of racial discrimination–that everyone is equal, but some are more equal than others. Also Orwellian is her claim that she wants “to speak openly and candidly on the subject of race.” Such an assertion is almost always disingenuous. After all, the way to speak openly and candidly is to speak openly and candidly. Declaring one’s intention to do so is at best superfluous throat clearing.
And while Sotomayor may be open, she isn’t candid. She presents a potted history of race in America in which there is a straight line from Jim Crow segregation through literacy tests to the Michigan amendment, which “involves this last chapter of discrimination” – even though it bans discrimination, and even though Sotomayor acknowledges that its substance is perfectly constitutional.
Yet for all the faults of the Sotomayor opinion, she does score some points against the plurality opinion, written by Justice Anthony Kennedy and joined by Roberts and Justice Samuel Alito. Kennedy refrained from either reversing the Hunter and Seattle precedents or distinguishing the Michigan amendment from those cases by noting the contradiction between the Sixth Circuit’s finding and the high court’s rationale for upholding racial preferences in Grutter.
Instead, he essentially rewrites Hunter and Seattle, as Sotomayor notes (citation omitted):
Disregarding the language used in Hunter, the plurality asks us to contort that case into one that “rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities.” And the plurality recasts Seattle “as a case in which the state action in question… had the serious risk, if not purpose, of causing specific injuries on account of race.” According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.
Although Sotomayor is right about this, she goes on to make an error that is the mirror image of Kennedy’s, in citing the 1996 case of Romer v. Evans (omitting another citation):
Romer involved a Colorado constitutional amendment that removed from the local political process an issue primarily affecting gay and lesbian citizens. The amendment, enacted in response to a number of local ordinances prohibiting discrimination against gay citizens, repealed these ordinances and effectively prohibited the adoption of similar ordinances in the future without another amendment to the State Constitution. Although the Court did not apply the political-process doctrine in Romer, the case resonates with the principles undergirding the political-process doctrine. The Court rejected an attempt by the majority to transfer decision-making authority from localities (where the targeted minority group could influence the process) to state government (where it had less ability to participate effectively).
Actually in Romer the high court, with Justice Kennedy writing for the majority, rejected the Colorado Supreme Court’s application of the political-process doctrine. Instead, Kennedy held that the amendment itself violated equal protection–something even Sotomayor concedes is not true of the Michigan measure.
The plurality opinion is frustratingly muddled, but it’s likely to be seen as the controlling one, since it reflects the farthest position in either direction that a majority of justices are willing to go. In effect it means that it will be difficult if not impossible to challenge state ballot initiatives banning racial preferences at public universities. And while the court did not overturn the Hunter and Seattle precedents, they do not look like especially robust law, now that they’ve been rewritten by Justice Kennedy.
As for the Roberts-Sotomayor kibitzing, it’s actually a continuation of a conversation that started many years earlier, when the late Justice Harry Blackmun, in an opinion in University of California v. Bakke, wrote: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”
Blackmun wrote those words in 1978, when Sonia Sotomayor was a law student. Thirty-six years later, Justice Sotomayor wrote these words:
Race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
Are Sotomayor’s lamentations evidence that Blackmun was right, or that he was wrong?
“A freedom-destroying cocktail.”
That’s how Justice Antonin Scalia characterized Tuesday’s Supreme Court ruling that law enforcement officers may pull over and search drivers based solely on an anonymous tip.
The justices ruled 5-4 Tuesday to uphold a traffic stop in northern California in which officers subsequently found marijuana in the vehicle. The officers themselves did not see any evidence of the tipped reckless driving, which was interpreted as drunkenness, even after following the truck for several minutes.
Justice Clarence Thomas said the tip phoned in to 911 that a Ford pickup truck had run the caller off the road was sufficiently reliable to allow for the traffic stop without violating the driver’s constitutional rights.
But Justice Antonin Scalia, who wrote the dissent in Prado Navarette v. California, had strong words about the decision’s implications for the future.
Here are some of Scalia’s points, in which he was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor (emphasis added):
* Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.
* Anonymity is especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about an arguably criminal act (running the victim off the road) without giving his identity, so that he can accuse and testify when the culprit is caught?
* The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.
* Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.