In the case of Schuette v. Coalition to Defend Affirmative Action, the Supreme Court, by a 6-2 vote, upheld a 2006 Michigan constitutional amendment that bans consideration of race in admissions to the state’s universities. But the majority decision, written by Justice Anthony Kennedy, went well beyond that. Without saying so explicitly, it appeared to give its approval to ballot initiatives designed to roll back affirmative action in other areas as well, such as hiring employees, awarding contracts—and ending racial segregation. In effect—and, in the case of the Court’s conservatives, surely in intention, too—the justices on the majority suggested that if voters in individual states want to throw out laws designed to counter America’s long history of racial discrimination, that’s fine by them, and perfectly constitutional.
Justice Kennedy wrote that the Michigan case, which had drawn conflicting rulings in the lower courts, was not about how to resolve the debate about racial discrimination and affirmative action but about “who may resolve it.” He went on: “There is no authority in the Constitution of the United States…for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
If you’ve been following the Supreme Court even casually over the past few decades, you might wonder how Kennedy justified this conclusion. Ever since Earl Warren’s day, the Court has been constructing constitutionally based arguments to prevent local elected officials, and the voters who usher them into office, from simply ignoring or repealing unpopular remedies for racial discrimination. In regard to the Michigan case, the key ruling came in the 1982 Washington v Seattle School District case, when the Burger Court overturned a local ballot measure that was designed to end busing black students to white schools—a policy that was even more unpopular than using race as a factor in determining college admissions.