July 01, 2011

Race Decision: Outrageous Judicial Activism

Statement of CFJ Executive Director Curt Levey on today’s decision invalidating Michigan’s ban on racial preferences:

In one of the most outrageous examples of judicial activism ever seen, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has struck down the voter-approved Michigan Civil Rights Initiative (MCRI), which bans racial and gender preferences in Michigan’s public employment, education and contracting.

In today’s 2-1 decision, two Clinton appointees came to the startling conclusion that MCRI violates the U.S. Constitution’s Equal Protection Clause because it “reordered the political process to place special burdens on racial minorities.” Their reasoning: “a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution.”

This reasoning is completely disingenuous because the purpose of all constitutional amendments is to reorder the political process in a way that can’t easily be reversed.

Even the very liberal Ninth Circuit rejected this reasoning in its 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based. Noting that the Fourteenth Amendment’s Constitution’s Equal Protection Clause barely permits racial preferences, the Ninth Circuit reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

In other words, the Constitution’s equal protection guarantee cannot possibly mean that states are prohibited from amending their Constitutions to ensure equal protection of all races. The argument to the contrary was widely considered to be a legal stretch when first made by Proposition 209’s opponents, and it lost any plausibility once rejected by the liberal Ninth Circuit. Its resurrection in the Michigan case was not taken seriously before today’s “gift” of judicial activism from the Sixth Circuit.

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. That shouldn’t be too surprising given that opinion polls over the last decade have repeatedly shown that Americans overwhelmingly oppose racial preferences.

Today’s decision is a classic example of legal elites trying to impose their values – in this case, a belief in achieving racial diversity at any cost – on the “less enlightened” public after those values are rejected at the ballot box. This use of the courts to do an end-run around the democratic process is a hallmark of liberal judicial activism.

It is no wonder that the Sixth Circuit decided to release this decision on the Friday before a long holiday weekend.

The only good news is that the state of Michigan will surely appeal today’s decision to the U.S. Supreme Court and/or the full Sixth Circuit. If the Supreme Court reviews this decision, it will almost surely reverse it. In fact, I expect that some if not all of the Court’s liberal Justices would vote to reverse.