Which is why Justice Stephen Breyer, who usually is a member of the liberal bloc, concurred in the court’s judgment. He was hoist by his own progressivism. Because Breyer believes that democracy — the right of majorities to have their way — trumps most competing values most of the time, he is generally deferential to the preferences of legislatures, and, in this instance, deferred to the results of a popular referendum. Doing so, he remained consistent with a stance that generally serves the progressive agenda of reducing constitutional impediments to expansive government.
The moral of the story from Michigan is: What a tangled web we weave when first we practice to deceive ourselves into thinking we can gracefully ignore the great principle resoundingly affirmed in 1896 by Justice John Marshall Harlan’s dissent in the Plessy v. Ferguson decision. In this, the court held that government actions can take cognizance of race if the resulting treatment of racial groups is “separate but equal.” Justice Antonin Scalia, joined by Justice Clarence Thomas, concluded his concurrence in the court’s judgment about Michigan this way:
“As Justice Harlan observed over a century ago, ‘Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.’ The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”
The court’s continuing fissures regarding “race-sensitive” policies — six justices used four opinions to reach the result — indicate that Harlan’s principle remains too clear for the comfort of a court still too fond of euphemisms. That is shameful.
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