Half a Win on Supreme Court’s Affirmative Action Ruling — John Yoo

 

Most conservatives were probably happy with the news of yesterday’s Supreme Court decision in Schuette v. BAMN, which upheld Michigan’s state constitutional ban on affirmative action. The plurality opinion, however, should curb their enthusiasm.

Written by Justice Anthony Kennedy and joined by Chief Justice Roberts and Justice Alito, the plurality treated the case not as one about a color-blind Constitution, but as a political process issue. They essentially reduced the question to whether Michigan was within its rights to enact the ban through a ballot initiative. They found that it was — but suggested that a state could also legitimately use the exact same process to reach the opposite outcome.

Critics of the Michigan law claimed that it violated the Equal Protection Clause of the Constitution because it placed bigger obstacles before minorities to get benefits (by requiring them to pass a constitutional amendment to overturn Michigan’s ban) than other groups. Affirmative action supporters were fortified by many liberal constitutional theorists, who have raised obscure civil rights movement-era cases to build a limitless theory that elevates racial benefits over the democratic process.

As Justice Harlan rightly observed in his dissent in Plessy v. Ferguson: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Michigan cannot violate the Equal Protection Clause by enforcing what the Equal Protection Clause — properly understood — requires.

But Justice Kennedy’s opinion refused to discard the political process theory. It tried to trim it back, by limiting it to efforts to make it hard to implement remedies for racial discrimination. But it left the circular, confusing, ungrounded political process theory alive, waiting to be resurrected by a future liberal majority on the Court. Only Justices Scalia and Thomas, who called for the overturn of the political process doctrine, had the courage to robustly defend the view that is most faithful to the Constitution: that the government cannot take account of the race of its citizens, for good or ill.

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  1. jeffearlwarren@gmail.com Contributor
    jeffearlwarren@gmail.com
    @JeffreyEarlWarren

    John,

    You’ve nailed it again.  Justice Harlan got it right over 100 years ago in Plessey and we’ve got to get back there.  Citizens that can vote to end discrimination on the basis of skin color (a good thing) theoretically can vote in the opposite direction.

    Did any of the  Justices mention the possible effects of a ruling going the other way when 30 or 50 years from now, Caucasians will be in the minority?  Will Justice Sotmayor’s reasoning apply to them in the future, should voters in other states vote in affirmative action for minorities?  ‘Tis a puzzlement.

    • #1
  2. Guruforhire Member
    Guruforhire
    @Guruforhire

    Chief Justice Rehnquist is dead.

    • #2
  3. Tuck Member
    Tuck
    @Tuck

    Wow, suddenly Kennedy’s the arch-conservative. ;)

    (Note the small “c”…)

    • #3
  4. GKC Member
    GKC
    @GKC

    I would be curious as to the thoughts on the Sotomayor performance.  That she comes across as an insulting identity politics hack seems but an Embarrassment to the Court.

    • #4
  5. user_240173 Contributor
    user_240173
    @FrankSoto

    John Yoo:

    But Justice Kennedy’s opinion refused to discard the political process theory. It tried to trim it back, by limiting it to efforts to make it hard to implement remedies for racial discrimination. But it left the circular, confusing, ungrounded political process theory alive, waiting to be resurrected by a future liberal majority on the Court.

     Though true, I would point out that a lack of precedent has never been an obstacle to liberal courts.  Even if the political process theory had been reversed, a future liberal majority could revive it no matter how this decision had come down.

    • #5
  6. Asquared Member
    Asquared
    @ASquared

    GKC: I would be curious as to the thoughts on the Sotomayor performance.

     She clearly got the wrong message from Harrison Bergeron.

    I will stipulate that you can’t wish away racial inequality. So what? That does not necessitate the government punishing and subsidizing to ensure outcomes are equal. That is not a free society.

    Sotomayor has clearly demonstrated that she will never use rational thought in her decisions. In an ordinary world, she would be an embarrassment to the Supreme Court, but this is no ordinary world.  

    To use Roberts confirmation analogy, she will call balls and strikes based solely on the color of the batter because you have to discriminate based on race to protect the batter from racial discrimination.

    What’s worse is, Affirmative Action in academic admission hurts minorities most, because virtually every minority gets admitted to a school where they are below average academically.  FAR more minority students would graduate if they were placed according to their academic skills, not their skin color.

    Sotomayor’s position inherently assumes minorities will always be academically inferior. But those that disagree with her are “racists”. Orwellian, isn’t it. 

    • #6
  7. Peter Robinson Contributor
    Peter Robinson
    @PeterRobinson

    Dear John,

    Two observations:

    1)  I knew the decision sounded too good to be true.

    2) I’ve come to rely on your analyses completely.  If the rest of Ricochet ever evaporated, leaving only John Yoo, it’d still be worth the price of membership.  In other words, thanks.

    • #7
  8. James Of England Moderator
    James Of England
    @JamesOfEngland

    Asquared:

    Sotomayor’s position inherently assumes minorities will always be academically inferior. But those that disagree with her are “racists”. Orwellian, isn’t it.

     I thought that Sotomayor’s dissent was exactly what I look for as a second choice in a liberal justice.
    My first preference would be that they worked hard to understand the law and made good judgments as well as bad; I’d place Breyer and Ginsburg in this category.
    My second preference would be that they alienated the rest of the bench and limited the influence of their toxic ideas.

    Sotomayor directly and personally insulted Breyer (which is nice, but Breyer’s a big boy and is happy to get over his ego). More importantly, she insulted Kennedy, an enormous ego barely contained by an overstretched nanomembrane. Whether Kennedy retires under a Republican or a Democrat may be one of the most important factors in America’s future, and I must believe that Justice Sotomayor did America a tremendous favor here.

    • #8
  9. GKC Member
    GKC
    @GKC

    James Of England: My second preference would be that they alienated the rest of the bench and limited the influence of their toxic ideas.

     Great point.  I’ll take it.  

    • #9
  10. Skyler Coolidge
    Skyler
    @Skyler

    I’ll take what I can get.  At this point, anything the stops any form of federal power over the states is a complete win.  The states that don’t discriminate will win, and we can move to those states.  Those that incorporate racist practices will lose.

    • #10
  11. Ontos Member
    Ontos
    @Ontos

    correction:  embarrassment to the one who appointed her and the senators who voted to confirm her nomination.

    • #11
  12. user_908234 Member
    user_908234
    @TimKowal

    One wonders how committed Justice Kennedy is to the “political process” when he is willing to accuse the entire process of bigotry to overturn laws he doesn’t like.

    • #12

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