Good news!

The Supreme Court decided, in the case of Schuette v Coalition to Defend Affirmative Action, Integration and Immigration Rights By Any Means Necessary (BAMN), that the convoluted reasoning that Michigan’s Proposition 2, which outlawed discrimination based on race by state agencies, including state universities was actually racially discriminatory in itself, was a stinking pile of bovine feces wrong. Patterico has a good discussion going on this case.

The decision was 6-2 (Justice Elena Kagan recusing herself), with Justices Sonia Sotomayor and Ruth Ginsberg saying, in effect, that since the Constitution (supposedly) allows Affirmative Action (see Grutter v Bollinger) that Affirmative Action is not only allowable but practically mandatory.

I’ll have more on this in the comments as time allows.


  1. The story:

    In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically. “But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent.

    The learned Justice said, in effect, that legislation which specifically bans discrimination on the basis of race is, in itself, racially discriminatory. In other words, if you don’t grant minorities preferences, they are being discriminated against.

    In Grutter v Bollinger, Justice Sandra O’Connor said that the Court expected that the racial preferences allowed in 2003 would be unnecessary in 25 years, due, I suppose, to the beneficial effect of those preferences. Well, that was 11 years ago, so we’re not quite half way through the Grutter formulation of a quarter of a century.

    It seems that Justice Sotomayor believes that racial preferences, which were allowed in Grutter, are actually mandatory.

  2. It seems to me that Justice Scalia came close to the target, but pulled up short:

    Even taking this Court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?

    Simply by allowing the government to notice race, we wind up with the cockamamie results we have in attempting to address race. It is, in effect, illegal to discriminate against certain people on account of race, but not only legal, but in some cases required to discriminate against other people on account of race. That leaves politicians and the courts with the burden of deciding how much discrimination to allow, and for or against whom, all under a Constitution which says that it shouldn’t be done in the first place.

    I would argue that quantification by race is essentially indistinguishable from qualification by race, and that doing something as innocuously simple as counting by race necessarily leads to discrimination by race. Logically, it should not be so, but in every practical result it has been so.

  3. Joel Gehrke at reports the following: (emphasis added)

    Supreme Court Justice Antonin Scalia faulted Justice Sonia Sotomayor for making what he regards as a “shameful” suggestion that the Michigan voters who decided to ban affirmative action in college admissions were motivated by racism.

    Scalia wrote a concurring opinion upholding a 2006 ballot initiative that amended Michigan’s constitution to ban affirmative action.

    “As Justice Harlan observed over a century ago, ‘[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,’” Scalia concluded, quoting the dissent in Plessy v. Ferguson. “The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”

    And then, the Parthian shot: “And doubly shameful to equate ‘the majority’ behind [the constitutional amendment] with ‘the majority’ responsible for Jim Crow,” he added in a final footnote, citing the first two pages of Sotomayor’s dissent…

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