Lucky Elena Kagan. She gets to sit out this year’s affirmative action case at the Supreme Court, probably because she worked on a related matter when she was solicitor general. Part of me wishes I could skip it, too. This is a case that liberals will lose, and probably deserve to lose.
Schuette v. Coalition to Defend Affirmative Action is not about whether states can continue giving race-based preferences to black and Hispanic applicants to state universities. That was the subject of last term’s Supreme Court challenge Fisher v. University of Texas. In that one, the court allowed affirmative action to continue in the name of promoting diversity (though it also made it harder for schools to do it).
The new case is the upside-down version of the last one: It’s about whether states may ban schools from using affirmative action. That’s what Michigan did by passing a ballot initiative in 2003 called Proposal 2. I wouldn’t have voted for it. But should the Supreme Court say that when voters decide to restrict the use of affirmative action, they have violated the constitution?