What government enacts, it can repeal, says the Supreme Court in upholding the Michigan referendum that ended affirmative action in college admissions. In a stunning 6-2 decision, Justice Steven Breyer joined the conservative jurists in ruling that while the Constitution allows states to use affirmative action for admissions, it does not require states to do so:
The justices said in a 6-2 ruling Tuesday that Michigan voters had the right to change their state constitution to prohibit public colleges and universities from taking account of race in admissions decisions. The justices say that a lower federal court was wrong to set aside the change as discriminatory.
Breyer’s concurrence agrees that the political process has to be the final arbiter of whether to use such systems as the policy to produce diversity in admissions:
Justice Anthony Kennedy wrote the majority opinion for Schuette v BAMN [not Clarence Thomas, as I first wrote]. Justices Antonin Scalia and Thomas in concurrence also held that the people of a state can rationally choose how to approach diversity and compliance with constitutional requirements through the normal legislative and/or referendum process:
Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and there- by adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. The mandate for segregated schools, Brown v. Board of Education, 347S. 483, and scores of other examples teach that individual liberty has constitutional protection. But this Nation’s constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here. These precepts are not inconsistent with the well-established principle that when hurt or in- jury is inflicted on racial minorities by the encouragement or com- mand of laws or other state action, the Constitution requires redress by the courts. Such circumstances were present in Mulkey, Hunter, and Seattle, but they are not present here. Pp. 11–18.
Scalia and Thomas also argued that in order to overturn the referendum and the will of the electorate, the result would have to have been motivated by discrimination, which in this case it “plainly” was not:
The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not. Pp. 1–18.
The big news here is the split, with Ginsburg and Sotomayor dissenting. A 5-4 or 5-3 decision would have produced an avalanche of bitter criticism, and even this still might. But Breyer’s concurrence will absorb a lot of that reaction, probably more than Thomas’ authorship of the opinion. We’ll see.
Update: The Washington Post quotes Anthony Kennedy:
Justice Anthony Kennedy said voters chose to eliminate racial preferences because they deemed them unwise.
Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results.
Sotomayor read her dissent aloud in the court, usually a sign of significant displeasure with the result. At 58 pages, her dissent went longer than the opinion and the concurrences combined.
Update: Misread the opinion citations; Kennedy authored the main opinion, Scalia and Thomas wrote a concurrence. I’ve fixed it above.