The John Roberts’ (pictured) court did not completely pull out the rug from under affirmative action. Yet one could argue that it tripped Michigan’s Affirmative Action program to its knees and then proceeded to kick it to the ground in order for it to chew on at least part of the very rug it’s kneeled on.
On Tuesday, the Supreme Court upheld Michigan’s Affirmative Action ban on using race as a factor in college admissions. The 6-2 ruling states that Michigan voters had the right to change their state constitution to prohibit public colleges and universities from taking race in to account for admissions decisions. And as the AP reports, the justices also concluded that a lower federal court was wrong to set aside the change as “discriminatory.”
Yet, the court did not tackle the constitutionality of affirmative action altogether.
As Justice Anthony Kennedy explains in the decision:
This case is not about the constitutionality or the merits of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences. Where States have prohibited race-conscious admissions policies, universities have responded by experimenting ‘with a wide variety of alternative approaches.’ The decision by Michigan voters reflects the ongoing national dialogue about such practices.
Nonetheless, while affirmative action has not been banned, the court finds that it’s perfectly legal for select states to ban it in admissions if they so desire. This will undoubtedly embolden opponents of the program. Already, there are plans to follow Michigan’s lead and put similar constitutional amendments in states like Ohio, Missouri, and Utah.
It feels senseless to continue to leave these sorts of matters to public votes, state governments, and other institutions when history has repeatedly shown each to be continuously wrong on what’s right…and legal.
Worse, Chief Justice Roberts’ intentions to gut policies like affirmative action are quite clear. Roberts is the same person who once wrote in a 2007 decision to strike down desegregation programs in Seattle and Kentucky, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” More, Roberts’ decade-spanning criticism of the Voting Rights Act has long been examined. So even if today’s decision counts as a “punt,” it’s a tactical one that lays the ground work for the further gutting of affirmative action.
In her dissent, Justice Sonia Sotomayor took issue with the stance that judicial intervention in the Michigan case “impedes” rather than “advances” the democratic process. Sotomayor went on to write, “I firmly believe our roles as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection.”
Sotomayor also noted, “The Constitution does not protect racial minorities from political defeat, but neither does it give the majority free rein to erect selective barriers against racial minorities.”
Her remarks come at a time when 60 years after segregation, a new investigate report concludes select parts of the South (like Tuscaloosa, Alabama) “have effectively reinstituted segregation for large numbers of Black students.”
It should be noted that Justice Elena Kagan recused herself from the case for reasons that remain unconfirmed, though Politico writers Stephanie Simon and Josh Gerstein explain, “She may have had dealings with the case while serving as solicitor general in the Obama administration or earlier in her career, as dean of Harvard Law School.”
The likes of John Roberts can afford to be “colorblind”; however, one hopes that those on the bench like him may hurry and retire so that President Barack Obama can stack this Supreme Court with judges who don’t want us to spend the next 30 years reliving the 1950s and 1960s.
Hopefully, they’ll all be like Sonia Sotomayor who rejected Roberts’ views on how to tackle discrimination and race by making it very plain that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.”