Many reasonable accounts from high court correspondents suggest the U.S. Supreme Court appears likely to uphold a Michigan constitutional amendment banning the use of race-conscious admissions policies at public universities.
On Tuesday, with hundreds of protestors gathered outside the courtroom, oral arguments in Schuette v. Coalition to Defend Affirmative Action were presented to eight justices of the high court, with Justice Elena Kagan recusing herself. The constitutional amendment at issue, passed via state referendum in 2006, faces a challenge from a coalition of affirmative action advocates that claims the amendment violates the Equal Protection Clause by placing an undue burden on minority populations. In part, the Coalition says that legacy students could lobby university officials for preference in the admissions process, while minority students must win a statewide repeal of the amendment before taking similar action.
In general, the Supreme Court’s conservative justices did not appear ready to support the Coalition’s arguments. For example, in response to civil rights attorney Mark Rosenbaum, arguing on behalf of the Coalition, Reuters reports that Chief Justice John Roberts “leaned forward from his center chair on the mahogany bench and said curtly: ‘You could say that the whole point of…the Equal Protection Clause is to take race off the table.’” He went on to ask if it was “unreasonable for the state to say, ‘Look, race is a lightning rod…We want to take race off the table and try to achieve diversity without racial preferences’?”
For his part, Justice Anthony Kennedy was restrained in his questioning, appearing to seek a narrow justification for upholding the Michigan amendment while leaving in place important precedent. After all, rulings in 1969 and 1982 in cases from Akron and Seattle – in which the Court struck down voter measures that removed anti-discrimination laws in education and housing – complicate any path to upholding the amendment. Michigan Solicitor General John Bursch suggested a possible distinction: earlier cases involved anti-discrimination laws, while the amendment at hand only demands equal treatment. “This was a broad-based law that was primarily motivated by the people of Michigan’s decision to move past the day when we are always focused on race,” Bursch explained.
Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.
Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?
Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”
While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.
The nation will be paying close attention to the Supreme Court’s review of the University of Texas’s admissions policies when it hears oral argument in Fisher v. University of Texas at Austin (UT) on October 10. Most of the conversation will focus, as it should, on what the Court has to say about race, education and opportunity in the twenty-first century. But Fisher is also important for what it will teach us about the Roberts Court’s faith in the rule of law and the principle of stare decisis (or the binding effect of past precedent).
UT’s admissions program considers the race of its applicants, but only alongside a variety of factors (including class, family history, work experience and individual talents) that shape a student’s identity and potential. As Joshua Civin explained well in this blog, the alternative so-called “race-neutral” approach would actually demean students’ individuality, by forcing them to censor references to race and culture out of their college applications.
It is well established that UT’s admissions policies are good for our multi-racial democracy, and wholly consistent with the Constitution’s equal protection clause. That is not just the opinion of over 70 amici briefs siding with the university. It is also the view of the Supreme Court, which addressed these exact issues less than a decade ago in Grutter v. Bollinger.
In Grutter, the Court upheld the University of Michigan Law School’s similarly holistic admissions policy. Justice O’Connor’s opinion enthusiastically affirmed principles first announced by Justice Powell in Regents of Univ. of Cal. v. Bakke(1978). She explained the importance of diversity for giving all students the best education possible, and for training a diverse set of leaders for America’s future.
UT has followed these instructions to the letter. The Fifth Circuit found exactly that when upholding the constitutionality of its admissions program. As my colleague Sidney Rosdeitcher points out, in a thorough review of the facts and law of this case, “it would be an assault on the principles underlying stare decisis” for the Supreme Court to reach beyond the issues raised in this case to overturn or limit Grutter.
Because the constitutionality of DOMA is already before the high court in two other petitions, the ACLU has asked the Supreme Court to bypass appeals court review in Windsor v. United States and directly review U.S. District Judge Barbara Jones’ holding that Section 3 of DOMA unconstitutionally discriminates against same-sex married couples.
All three opinions up for review by the high court found that Section 3 was unconstitutional, but as Chris Geidner explains for BuzzFeed, the analysis in each case is different.
It took an incredibly ridiculous amount of time, but 45 years ago today the U.S. Supreme Court finally got around to invalidating state laws that banned interracial marriage.
The case, Loving v. Virginia decided on June 12, 1967, involved Mildred and Richard Loving who were married in the District of Columbia in 1958, and later prosecuted in Virginia by authorizes intent on enforcing the state’s racist laws against interracial marriage. The couple later moved to the District of Columbia and lodged a class action challenging Virginia’s anti-miscegenation laws as a violation of the Constitution’s liberty protections found in the Fourteenth Amendment.
The case eventually reached the Supreme Court.
Writing for the unanimous Court, Chief Justice Warren E. Burger rejected Virginia’s arguments that its laws did not subvert the Constitution. The state’s arguments are not worth reciting. Suffice it to say, those arguments were racist. The Warren Court easily found that Virginia’s laws were a serious affront to the Constitution’s liberty protections.
“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” Burger wrote. “The fact that Virginia prohibits only interracial marriage involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.
“We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”