Hello, readers, and welcome to the middle of October! In case you missed it, on Monday, New Jersey Governor Chris Christie dropped his administration’s challenge to allowing gay marriage in the state. New Jersey is now the fifteenth state (including the District of Columbia) to legally permit same-sex marriages. Aside from this exciting news, the Supreme Court’s first few weeks were rather eventful ones, with eleven cases argued and several new petitions granted since the term began on October 7. Of these cases, notable ones to explore are McCutcheon v. Federal Election Commission, previewed by BPR’s Dan Duhaime here; Kansas v. Cheever; Kaley v. United States; DaimlerChrysler AG v. Bauman; Heimeshoff v. Hartford Life & Accident Insurance Co.; and Schuette v. Coalition to Defend Affirmative Action.
I would like to delve deeper into Schuette v. Coalition to Defend Affirmative Action, because this case comes to the Court hot off the heels of Fisher v. University of Texas at Austin, a case decided in June 24, 2013 that struck down UT Austin’s affirmative action policy. That 7-1 decision, with an opinion penned by Justice Kennedy and Justice Ginsburg serving as the lone dissenter, held that UT Austin’s affirmative action policy did not adhere to the “strict scrutiny” guidelines laid down by the Court in Grutter v. Bollinger (read more about what exactly those guidelines are here, here, and here). In Grutter, Justice Sandra Day O’Connor explained that affirmative action policies were constitutional as long as a consideration of race was “narrowly tailored” (from Oyez) and not the only factor for admissions; according to Justice Kennedy in his Fisher opinion, UT Austin’s policies did not align with the Grutter standard, and as such were not permissible.
In Schuette v. Coalition, though, the problem is not whether certain affirmative action policies themselves are constitutional. Instead, as professor of law Cass Sunstein argues in an article from October 17, Schuette v. Coalition calls into question “the permissible uses of state ballot initiatives.” The facts of the case are as follows (from Oyez): in Michigan’s November 2006 election, “a proposition to amend the state constitution to prohibit ‘all sex- and race-based preferences in public education, public employment, and public contracting’” was placed on the ballot, and was supported by 58% of the voting public. This anti-affirmative action ballot initiative, known as Proposal 2, was then challenged by “a collection of interest groups and individuals” called the “Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary.” (What a mouthful!) The Coalition argued that Prop. 2 violated the Equal Protection Clause of the Fourteenth Amendment in regard to public education because, as Deborah Archer explains at the Huffington Post, “Proposal 2 resulted in an inequitable admissions process where educational institutions may consider a broad array of criteria in order to recruit a diverse student body, as long as race is not one of the criteria.”
A Michigan district court agreed with the Coalition and declared Prop. 2 unconstitutional; the U.S. Court of Appeals for the Sixth Circuit affirmed this decision. Now the case has reached the Supreme Court, and the question still remains: is Michigan’s Prop. 2 unconstitutional under the Equal Protection Clause of the Fourteenth Amendment? Or, as Cass Sunstein phrases the problem, “Michigan is asking: Why can’t our voters decide that affirmative-action programs aren’t in the state’s best interest?” However, I’m less concerned with the question framing the case and more worried about its outcome, especially considering that Justice Elena Kagan has recused herself. It seems that, after Schuette v. Coalition’s oral argument, “there are at most three votes to strike down Michigan’s ban on affirmative action in the admissions process, and very likely four votes to uphold it” (from SCOTUSblog).
Lyle Denniston, SCOTUSblog’s ever-reliable court reporter, explains that “[Justice] Kennedy holds what is likely to be the decisive vote,” and that “if he joins in opposition to the state’s voter-approved ‘Proposal 2,’ the Court could split four to four and the measure would be struck down.” Denniston thinks that, based on the oral arguments for Schuette v. Coalition, “the Court no doubt will strive to avoid that outcome, and Kennedy seems to have the power to see that [striking down Prop. 2] doesn’t happen.” This outcome of the oral argument is nerve-wracking for me—I have always been made uncomfortable by Justice Kennedy’s position as Official Supreme Court Swing Vote. If he has as much power to decide Schuette v. Coalition as Denniston thinks, Kennedy is in a prime position to strike down a Supreme Court precedent—called the “political process theory” by Denniston—that addresses ballot initiatives and race.
In 1969, in a case called Hunter v. Erickson, the Supreme Court struck down an amendment to Akron, Ohio’s city charter because the amendment sought to “prevent the city council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.” The court held this amendment in violation of the Equal Protection Clause of the Fourteenth Amendment because it clearly discriminated against minorities; Hunter v. Erickson was the first instance of the Supreme Court striking down amendments to state or city constitutions that discriminate on the basis of race.
Thirteen years later, the same jurisprudence was applied in a case called Washington v. Seattle School District No. 1. In 1978, the city of Seattle adopted a mandatory busing plan to integrate its public schools, but a statewide ballot initiative adopted in that same year that pushed for a “neighborhood school policy,” thereby blocking “the implementation of Seattle’s mandatory busing plan.” Seattle challenged the ballot initiative on the grounds of an Equal Protection violation, and the Supreme Court (in a 5-4 decision) overturned the ballot initiative because the proposed amendment “place[d] an unconstitutional burden on racial minorities within the governmental process” (from Oyez).
With both of these cases, the ballot initiatives were overturned because each one would have changed the structural rules for the governance of either a city or a state to discriminate against racial minorities. This same discrimination-within-a-constitution lies at the heart of Michigan’s Prop. 2, and thus it follows that Schuette v. Coalition should be decided according to the precedent set by Hunter v. Erickson and Washington v. Seattle School District No. 1. Sadly, it looks as though Kennedy wants to overturn this precedent—and therefore allow statewide discrimination against racial minorities—rather than uphold it. I’m keeping my eyes peeled for Schuette v. Coalition’s decision, but I’m not holding my breath. After all, the Court that just heard Schuette v. Coalition’s oral argument is the same Court that, in June 2013, overturned key provisions of Title VII of the Civil Rights Act and the Voting Rights Act. If the Court’s conservative members have no problem tearing down these seminal laws, I see no reason why they won’t forego the 1969/1982 precedent regarding ballot initiatives and racial discrimination.