The Supreme Court on Tuesday ruled that a state, through a voter referendum, can prohibit a practice—race-conscious admissions in public education—that the U.S. Constitution doesn’t require. The 6-2 decision (Justice Elena Kagan was recused) in Schuette v. BAMN preserves the status quo for Michigan and the seven other states that have banned affirmative action, beginning with California in 1996.
Even for supporters of affirmative action, then, the Court’s decision is not the travesty Justice Sonia Sotomayor’s 58-page dissent would have us believe.
The travesty, instead, is the Roberts Court’s inevitable march toward its virtual eradication of affirmative action in the 42 states it remains permitted.
Affirmative action only exists today because Justice Sandra Day O’Connor deemed it so in 2003’s Grutter v. Bollinger. But O’Connor’s retirement in 2006, and her replacement by the decidedly un-swinging Justice Samuel Alito, allowed the new chief justice, John Roberts, to renew conservative efforts to end race-conscious admissions. Back in 2007, Roberts threw his first salvo in the affirmative action wars. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in Parents Involved v. Seattle, joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Justice Anthony Kennedy gave them his fifth vote to strike down two school districts’ re-integration plans, but he did not join Roberts’ now-famous quip because, in theory, he supports the use of race-conscious admissions. In practice, though, he has not approved of an affirmative action policy since he arrived on the court in 1988.
Just last term, in Fisher v. University of Texas, the Court seemed poised to strike at the heart of Grutter, which upheld racial preferences in university admissions (which, in turn, provoked the Michigan referendum at issue in Schuette). At oral argument in Fisher, the conservative justices—including O’Connor’s successor Alito—all expressed antagonism towards the University of Texas at Austin’s race-conscious admissions scheme used to boost minority enrollment after the school found that the state’s race-neutral “Top-Ten Percent Rule” did not result in a “critical mass” of diversity in the classroom.
But then, eight months after the argument, the Court punted. By a 7-1 vote (again, Justice Kagan recused), Justice Anthony Kennedy, writing for the Court, sent the Fisher case back to the appeals court to give the admissions policy a harder look. Such a short opinion after such a long gestation screamed “compromise” between every line, perhaps because the Court’s four die-hard foes of affirmative action could not bring along Kennedy to go the whole hog. Still, Justice Clarence Thomas wrote separately to deride affirmative action from his position of lived experience. Rather than engage in moral authority mortal combat with Thomas, Sotomayor, the self-proclaimed “perfect affirmative action baby” who had yet to preside over such a case since arriving on the Court, stayed silent, leaving Justice Ruth Bader Ginsburg alone in dissent.
In Schuette, Sotomayor made clear she will be silent no more. She, joined by Ginsburg, went all-in for the challengers’ argument that a majority can’t use the political process to make it especially difficult for racial minorities to pursue their own interests.
Problem is, the Court has held since 1978’s seminal Regents of the University of California v. Bakke decision that the educational benefit of a diverse student body is the sole compelling interest under the Equal Protection Clause for a public university to prefer a student of one race over another in admissions. And, as Justice Antonin Scalia wrote in his separate opinion, “[w]ere 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.”
Had the Michigan ban “forbid[den] the use of race-conscious admissions programs designed to remedy past exclusionary racial discrimination or the effects of that discrimination,” as Justice Stephen Breyer wrote in his concurring opinion, the case should have gone Sotomayor’s way.
And there’s the rub. Back in Bakke, then-swing Justice Lewis Powell, fearing the open floodgates of race-based claims that would come from recognizing the obvious—that affirmative action is motivated first and foremost by reparative justice and that the Fourteenth Amendment endorses such programs—glommed onto diversity as a safer, more universal justification for his baby-splitting Bakke decision to strike down racial quotas in college admissions but preserve, at least in theory, racial preferences.
Justice Thurgood Marshall saw this sidestep for what it was. In his solo dissent detailing the myriad injustices done to African-Americans for three centuries, he wrote, “[i]t is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America.”
Sotomayor’s dissent, while couching her argument in terms of diversity, is also about such reparative justice. And her words, as well as her passion, echo Marshall’s righteous stand 36 years ago. “Race matters,” she writes, not only “because of the long history of racial minorities’ being denied access to the political process” or “because of persistent racial inequality in society,” but also “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”
One gets the sense that these are the words Sotomayor stifled, or perhaps drafted and circulated, in Fisher. Indeed, we may see them reappear sooner rather than later: the Fifth Circuit is due out with its decision in Fisher’s remand any day now and the Roberts Court has demonstrated its willingness to double-dip when the lower courts don’t do as the justices please. And in Schuette, Sotomayor has laid the groundwork for an argument in a future case where the diversity rationale, for all its flaws, will hold some currency beyond the deaf ears of her more conservative colleagues.
Until then, Schuette seems to be a cost-free way for the justices to blow off steam and signal where they stand. Kennedy, joined by Alito and Chief Justice John Roberts, made it a point to emphasize that Tuesday’s decision “is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.” Roberts, in a short concurrence, defended his public spirit against the dissenting opinion’s imputation of bad faith by noting that “racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good.” And true to form, Justice Scalia, joined by Thomas, railed against “this Court’s sorry line of race-based admissions cases,” and tipped the Court’s hand that “Grutter’s bell may soon toll.”
Whatever does happen to Grutter, it is true that campus diversity—indeed, diversity anywhere—is a wonderful thing. Yet diversity alone does not create a right to be admitted to the school of one’s choice. Sure, as Sotomayor wrote, “democratically approved legislation can oppress minority groups.” But the the Michigan ban is not oppression. And as today’s victors must—but surely won’t—understand, neither is affirmative action.