“It has come to this,” begins Justice Scalia’s opinion, concurring in judgment with Justice Kennedy, “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?”
Perhaps it is not possible to provide a more eloquently simple summary of the utter absurdity inherent in the question of Schuette v. Coalition to Defend Affirmative Action, decided by the US Supreme Court last week. Nevertheless, I shall add some additional analysis, as I believe the case and its contrasting opinions merit a thorough assessment.
In 1978, the Supreme Court issued its judgment on Regents of the University of California v. Bakke which, in general, upheld the legality of race-based admission standards for public universities while simultaneously striking down the quota system that had prevented Allan Bakke from being admitted to the UC-Davis School of Medicine. No opinion received the full support of a majority of the justices, and so it was Justice Powell’s opinion (which received the partial support from two blocs of four justices) that served as the judgment of the Court – a sort of legal ruling without the strength of precedent. Four justices (led by Justice Brennan) maintained that the race-based admissions programs were permissible under both the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, and four others (led by Justice Stevens) considered any use of race in public university admissions to be a violation of Title VI of the Civil Rights Act of 1964.
The essential judgment – that race-based admissions standards are permissible in some circumstances – became precedent in 2003 when a 5-4 Court upheld their use at the University of Michigan School of Law because of a “compelling interest” in achieving classroom diversity in Grutter v. Bollinger. Also in 2003, the Court decided Gratz v. Bollinger and declared that the University of Michigan’s use of “predetermined point allocations” for minority students in the application process was unconstitutional. The voters of Michigan responded in 2006 by banning the use of race, among several other factors, in giving preferential treatment in public education and other public institutions and functions via a constitutional amendment known as Proposal 2.
In last week’s Schuette decision, the Court upheld the ban in what ought to be known as the “no duh” ruling of the decade. With Justice Kagan recusing herself, the Court produced a 6-2 judgment delivered by Justice Kennedy. In the opinion, Kennedy states emphatically, “[This case] is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.” Thus, the two Bollinger precedents remained safe for the time being. Instead, the question in Schuette was whether Proposal 2 violated the Equal Protection Clause of the Constitution. The opinion reads thusly:
“…[W]hen hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts… But those circumstances are not present here… This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to voters. See Sailors v. Board of Ed. of County of Kent, 387 U.S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”).”
Chief Justice Roberts and Justice Alito joined in the opinion, while Roberts also penned a concurring opinion (mostly ripping into the dissent). Justice Thomas joined Scalia’s opinion which concurred in judgment. Justice Breyer also filed an opinion concurring with the judgment. Thus, as with Bakke, the Schuette case resulted in a “judgment of the Court” rather than a majority opinion.
The outcome of the case should be as straightforward as the wording of the Equal Protection Clause: “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” Treating applicants to public universities differently based upon their race denies to them such equal protection. Proposal 2 forbids such an abridgment of equal protection. “In my view,” states Scalia’s opinion, “any law expressly requiring state actors to afford all persons equal protection of the laws… does not—cannot—deny ‘to any person… equal protection of the laws,’ [citation omitted] regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.”
At that, the case should have concluded with a unanimous ruling in favor of upholding Proposal 2. However, as Slade Mendenhall noted in “Why the Left Can Never End Prejudice,” the left is and must be opposed to the pursuit of society free of racial prejudice. The collectivist mindset of the left has locked it into a sort of “demographic politics” in which they view equal treatment before the law as not only impossible (short of socialism in which all are equally poor, miserable, and enslaved) but actually something insidious – a means of oppressing entire races (or whatever other classification) of individuals by expressly prohibiting the consideration of race by government officials in the execution of government policies. And so, they will pursue their demographic politics relentlessly, even to the extent of undermining laws that forbid racial prejudice and of defiling the sanctity of our nation’s Judiciary.
Such was the case with the dissent of Justice Sotomayor, an Obama appointee, and of Justice Ginsburg who joined her. Sotomayor’s dissent begins by noting that “democratically approved legislation can oppress minority groups.” True enough, and it does more often than not. But the not so subtle implication here is that Proposal 2, which forbids government discrimination on the basis of race, is such an example of “oppression” of racial minorities. If the implication were not clear enough initially, Sotomayor states shortly thereafter that Proposal 2 “uniquely disadvantaged racial minorities.”
The 58-page dissent (longer than all other opinions in this case combined) shifts seamlessly between the abhorrent and the absurd. Eleven pages of the dissent, notes the Chief Justice, are devoted to the alleged “virtues of adopting race-sensitive admission policies.” The inclusion is unusual, opines Roberts, given that the same dissent maintains that such “virtues” should not determine the outcome of the legal issue at hand.
Through intellectual convolution bordering on outright contradiction, Justice Sotomayor concludes on one hand that the voters of Michigan were free “to eliminate the use of race-sensitive admissions policies,” but that they committed some unconstitutional act “by amending the Michigan Constitution to enact [Proposal 2], which provides in relevant part that Michigan’s public universities ‘shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.’” She maintains that while advocates for other policies may still appeal directly to the Board of Regents, advocates for race-based admissions policies have no such option and must instead work to overturn a constitutional amendment. The result, she maintains, is that Michigan’s policies “create one process for racial minorities and a separate, less burdensome process for everyone else” in pursuing policy changes – a violation of equal protection.
In examining her argument, first consider the text of Proposal 2:
1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
2. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
These, in addition to several subsequent clauses, require the Michigan’s government to treat all citizens equally, irrespective of the irrelevant and irrational criteria prohibited by the amendment.
However, Sotomayor has placed herself in a difficult position by saying that Michigan’s formal decision to treat its citizens equally before the law is, somehow, a subversive plan to treat them unequally — discrimination by banning discrimination.
Her entire dissent rests on differing political burdens placed upon advocates for race-based admissions and advocates for other policies. Set aside the law and precedent (which itself is flawed, as Scalia notes, though not that flawed) and instead dissect her argument logically.
Proposal 2 bans race-based and other discriminatory admissions practices, while other admissions practices (such as legacy-based admissions) remain a possibility. To effectively make her point that there now exists a differing burden in pursuing these policies, she must either accept A. that both sets of policies are equally permissible or B. that both sets are equally violations of equal protection. If one set were permissible and the other impermissible, then treating them as equivalents would not uphold scrutiny, as then there would be reason to treat them differently under the law (i.e., if affirmative action were impermissible and the other policies permissible, then it would make sense to ban the former and leave the other untouched).
If she accepts that both sets of policies are violations of equal protection, the argument would end there. Even if there were a differing burden placed upon the two sets of policies, both would be unconstitutional and banned regardless — unless, of course, she intends to argue against the very principle of equal protection under the law. In fact, she does intend as much, but this becomes clear only after examining the other alternative.
If she assumes that race-based admissions programs are just as permissible as the still legal programs, then she is saying, in effect, that race-based programs do not treat people differently under the law and so were valid under the Equal Protection Clause (barring precedents that already allow unequal treatment under the same clause). But if they do not treat people differently (that is, discriminate or grant privilege), then they ought to already be legal under Michigan’s amended constitution. Of course, they are not, meaning that they do treat people differently and so are not constitutional under the Equal Protection Clause.
If she were nevertheless to maintain that the Equal Protection Clause permits race-based admissions policies, she would necessarily be concluding that the Equal Protection Clause equally permits policies that treat people unequally and those that do not (again, if it did not treat people unequally, it would not be banned under present Michigan law). Not only does it permit them, she maintains. It requires they be considered on the same political plane, lest one set of policy advocates be treated “unequally.” Sotomayor’s conclusion is thus a logical impossibility, the essence of which is as follows:
The Equal Protection Clause demands that all people be treated equally under the law, including those would would enact policies that would treat people unequally under the law. If such individuals are not permitted a fair chance at implementing their policies, then it is a violation of their equal protection in their pursuit to end equal protection.
Her interpretation of the Equal Protection Clause is one that fundamentally undermines its principled foundation, instead leaving it as nothing but a self-contradiction from which any conclusion can be drawn. Not only does the principle of equal protection lose meaning in our nation’s Constitution, but so too does every other principle inherent therein. For example, the First Amendment would violate her warped interpretation of equal protection by placing differing burdens on those who prefer a secular state (as required by the Establishment Clause) and those who would prefer the implementation of theocratic policies — one set needing only to maintain the status quo, and the other needing to amend the Constitution. The same would apply to any provision (constitutional, legislative, or regulatory) if followed through to its irrational end, as any policy would, in effect, treat people unequally as one set got to see their policies implemented and the other did not.
The error is dangerous, and results from a fundamental belief held by the intellectual left that it is not wrong for the law to treat people unequally provided that the unequal treatment is conducted in the pursuit of some grand social end. Woodrow Wilson, for example, signed a eugenics bill into law “to authorize and provide for the sterilization of the feeble-minded” as governor of New Jersey in 1911. Franklin Roosevelt forcibly deported millions of legal Mexican immigrants and American citizens of Mexican descent during the Great Depression. To the left, the “greater good” trumps all legal and political principles.
The modern left is more subtle than their predecessors, often far more reserved than Sotomayor at revealing their hand. The reason public policies that discriminate based upon race exist at all is because the left has made some case that there exists an inherent interest in achieving “diversity” in public institutions, even if this means at the expense of students whose academic achievements would otherwise have garnered them a seat at a public university. A similar, though less legally successful argument, is that discrimination against one group is an acceptable means to rectify past discrimination against another (an argument I address fully in my essay “The Politics of Guilt”).
Sotomayor’s opinion is considerably less subtle, demonstrating a willingness to resort to flagrant contradictions (albeit, through poor attempts at using past precedent) to justify poor political policy. It is truly poor jurisprude who sets aside the law as it is and instead reads it as he or she would like it to be.
But that is what has been done for decades in relation to this issue. The Equal Protection Clause has been distorted to, as Scalia notes, to permit (or even require) the very thing it prohibits. Justice Thomas’s opinions on the subject have been particularly scathing, likening affirmative action to slavery and Jim Crow (sparking racist backlash from the left as a result). Thomas, the only other justice besides Sotomayor known to have received admission from affirmative action, has criticized the programs from both political and legal perspectives.
Ultimately, institutions such as public education should be privatized, ensuring in entirety that no one will be forced to live at the expense of others (e.g., individuals without children being forced to pay for the education of families with children through taxes — I say this as one of four children in my family, all of whom were publicly educated). Were they privatized, the institutions could conduct whatever race-based programs they desire, however obscene and immoral. In the meantime, public universities and schools should uphold the principles upheld in Brown v. Board (1954) – that there cannot be one set of laws for one group of individuals and a second set for another. For public primary schools, this means that all students of a certain age within the same school district should be allowed to attend the same school, pending their behavior in the classroom which may be reason for expulsion (this being academically relevant). For universities, this means an equal opportunity to apply and to be considered based upon criteria relevant to studies at a university. Anything less would be a violation of equal protection.
For now, race-based policies will continue where voters have not decided to ban them. At least the voters of Michigan have displayed the wisdom to ban them, and to fulfill the true meaning of the Equal Protection Clause even if the Supreme Court has not yet mandated it. The entire episode, however, displays a sort of intellectual deterioration on the part of the left – a desperation to keep divisive, demographic talking points alive for future races. Whether Sotomayor was thinking in such political terms is irrelevant; her collectivist logic was the same. It poisoned the very core of America’s Judiciary, but fortunately only enough to leave a lasting stain in the United States Reports without actually being enacted. Such collectivism must be opposed, especially in the courts, and the president responsible for placing it there must be replaced.
The full text of the opinion can be read here.
. Title VI forbids discrimination on the basis of race, color, or national origin for any institution or program receiving federal funding.