March 25, 2013

Supremes Add to Racially Charged Docket

Statement of Committee for Justice President Curt Levey on the Supreme Court’s decision today to review Michigan’s ban on racial preferences (Schuette v. Coalition to Defend Affirmative Action):

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases in which the Supreme Court partially upheld race-based admissions, triggering the campaign to enact Michigan’s ban.)

protesting for preferences in Michigan
Adding to an already racially charged docket, the United States Supreme Court signaled today that it is ready and willing to overturn one of the most outrageous examples of judicial activism in recent years – the Sixth Circuit’s 8-7 decision last November striking down Michigan’s voter-approved ban on racial and gender preferences in admissions to public colleges and universities.

The Sixth Circuit reasoned – if stretching the law and logic to reach a politically correct decision can be called “reasoning” – that the Michigan Civil Rights Initiative (MCRI) violates the U.S. Constitution’s Equal Protection Clause because, by amending the state constitution to prohibit racial and gender preferences, it makes it more difficult for minorities to use the “political process” to attain preferential treatment in admissions.  Never mind that, by definition, the purpose of all constitutional amendments – in contrast to ordinary legislation – is to reorder the political process in a way that is difficult to reverse.   

The Sixth Circuit’s far-fetched argument that requiring equal treatment regardless of race or sex is a violation of equal protection lost what little plausibility it might have had when it was rejected by the very liberal Ninth Circuit.  In a 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based, the Ninth Circuit pointed out that the Fourteenth Amendment’s Equal Protection Clause barely permits racial preferences and reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

It is not the voters of Michigan but the Sixth Circuit that distorted the political process by disenfranchising the state’s citizens on the question of  whether their state should use race in admissions. In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin. The Sixth Circuit’s end-run around the democratic process in Schuette is the hallmark of liberal judicial activism, in which courts impose the values of the elite –concerning diversity, abortion, gay marriage, and the like – on the less “enlightened” public.

It is difficult to predict the results of the other big race-related cases on the Supreme Court’s docket. While the Justices will probably strike down Texas’s race-based admissions system (Fisher v. University of Texas) and strike a blow against the pre-clearance provision of the Voting Rights Act (Shelby County v. Holder), those cases are close calls – 5-4 decisions are likely and it’s hard to know whether the rulings will be narrow or broad.

Schuette, on the other hand, should be a no-brainer for the Court. To uphold the Sixth Circuit would be to require that Michigan and similarly situated states reinstate their racial preferences.  The Supreme Court has never required that racial preferences be used in the name of diversity and it will not do so here.  The Court will reverse the Sixth Circuit and the five center-right Justices will be joined by some, if not all, of the Court’s four liberals.


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