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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.