Agreeing to disagree, disagreeing to agree, on the US Supreme Court

-Matt Burgess & Ian Burgess-

On November 7, 2006, Michigan voters passed Proposal 2, the ‘Michigan Civil Rights Initiative’ (MCRI), by a 58%-42% margin. The MCRI amended Michigan’s constitution to ban affirmative action programs “granting preferential treatment to…any individual or group on the basis of race, sex, color, ethnicity, or national origin” in public employment, public contracts, and public education, including admissions at Michigan’s public universities (e.g. the University of Michigan, Michigan State University). Unsurprisingly, the MCRI was very controversial.

The MCRI was proposed partially in response to two previous US Supreme Court (SCOTUS) decisions related to affirmative action in admissions policies at the University of Michigan (U of M). In one case in 2003, the SCOTUS ruled that an undergraduate admissions policy, which automatically awarded extra points (20 of the 100 needed for admission) to candidates for minority status, was unconstitutional under the Fourteenth Amendment of the US (federal) Constitution, in light of Title IX of the Civil Rights Act of 1964. The Fourteenth Amendment states (in Section I), “No state shall…deny to any person within its jurisdiction the equal protection of the laws,” which is commonly referred to as its ‘Equal Protection Clause’. Title IX prohibits “discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.” However, in the other case, the SCOTUS ruled that the U of M Law School’s more general use of race as a consideration in a holistic diversity policy in admissions, applied to students on an individual basis, was not prohibited by the Fourteenth Amendment or Title IX. It was indeed permissible because it served a “compelling interest” (by virtue of the benefits of diversity to the school and legal profession). It had been established by a previous SCOTUS ruling that the US Constitution allowed for affirmative action in cases where there was a “compelling interest” or where it corrected a previous history of discrimination. Thus, the MCRI sought to unambiguously ban affirmative action in university admissions (and other types of public employment, contracts, etc.) in Michigan.

The portion of the MCRI related to university admissions was challenged in federal court (also under Title IX and the Fourteenth Amendment), where it was initially struck down by the United States Court of Appeals for the Sixth Circuit, but then upheld (overturning the Sixth Circuit ruling) by the SCOTUS, in a 6-2 decision on April 22, 2014 (Schuette v. Coalition to Defend Affirmative Action). This SCOTUS decision had an unusual character, relative to most. There were five opinions filed, four concurring with the decision, one dissenting; and three of the four concurring opinions differed significantly in their reasons for concurring (the fourth, written by Chief Justice Roberts, who also signed onto the main plurality opinion, was seemingly intended as a brief response to parts of the dissenting opinion, rather than a stand-alone opinion). The earlier Sixth Circuit Court decision, and in fact many of the earlier Supreme Court cases related to affirmative action, had a similar character.

We think this case provides interesting examples of: (i) how people can reach agreement on a specific recommended policy or action, despite disagreeing significantly on the reasons for this recommendation; and (ii) the challenges facing constructive dialogue on sensitive issues touching bedrock values, aspects of our identity, and painful histories.  We focus primarily on the SCOTUS ruling, but encourage interested readers to explore the rich legal history surrounding this issue. Importantly, we do not wish to present an opinion on the merits of the SCOTUS decision itself, or of affirmative action in general, here. 

There were two key questions at the heart of the MCRI case from a legal perspective: (i) What types of affirmative action (if any) are allowed by the Fourteenth Amendment and Title IX? (ii) (When) do the Fourteenth Amendment and Title IX prohibit the dismantling of affirmative action programs? Ultimately, the plurality opinion held that some types of affirmative action were permitted, but their dismantling by the MCRI in this instance did not violate the Fourteenth Amendment, and therefore, the SCOTUS (or any court) did not have the authority to strike it down.

Writing for the plurality, Justice Anthony Kennedy began his judgment (after summarizing the case’s history) by stating, “Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.” He made a similar statement in his bench announcement (the oral summary of the judgment given on the date of its release). His (and the Court’s) opinion was that the constitutionality of some types of affirmative action in higher education had been clearly established by the previous judgment related to the U of M law school, and others. Instead, he opined that the key question was whether the Michigan voters had the constitutional right to reverse affirmative action policies set out by the U of M board of trustees (i.e. question (ii) above).

The judgment of the Sixth Circuit (which had struck down the MCRI) held that this was prohibited by the Fourteenth Amendment, by virtue of precedent from a previous SCOTUS case involving a racial integration policy in Seattle’s 1st School District. In that case, a policy aimed at promoting racial integration in schools, adopted by a democratically elected school board, was banned by a statewide ballot measure. The SCOTUS struck down this ballot measure because it effectively re-allocated the decision-making power from the school board to the state (different levels of government) on a racial issue, while leaving decision-making power on all other matters in the hands of the school board. Thus, it treated school board decisions related to racial issues differently from all other issues, and had gone farther than a mere repeal of the school board’s integration policy by entrenching the new policy at a higher level of government, thereby making “the enactment of racially beneficial legislation uniquely difficult, and… (imposing) direct and undeniable burdens on minority interests.” As such, it was ruled to have violated the Fourteenth Amendment. The Sixth Circuit in the MCRI case held that the MCRI was unconstitutional for the same reason (because it moved decision-making power on admissions issues concerning race from the university boards of trustees to the state level).

Justice Kennedy (along with Justice Alito and Chief Justice Roberts) disagreed with this assessment, arguing that the Seattle school board policy, unlike the University of Michigan admissions policy, was clearly aimed at rectifying a racial injustice (segregation) that was undisputedly constitutionally forbidden; and that it was for this reason, not the reason quoted above, that the Seattle ruling was still valid (in light of a number of more recent cases, which we won’t summarize, but are referenced in the Kennedy opinion). Thus, he concluded that the Sixth Curcuit Court had incorrectly applied the Seattle precedent to the MCRI case.

Justice Breyer, though concurring with the judgment (that the MCRI was not unconstitutional), disagreed with Justice Kennedy’s narrower interpretation of the Seattle ruling, but nonetheless deemed it to not apply to the MCRI for a different reason. In particular, he argued that, unlike in the Seattle case, where power was being moved from a democratically elected school board to a democratic state-level ballot, power  in the MCRI case was being transferred from an undemocratic body (the board of trustees was elected, but policies such as the policies in question were commonly delegated to unelected faculty members) to an elected body. Thus, the MCRI was not fundamentally altering an existing democratic process on racially sensitive admissions policies, but instead creating one where none had previously existed.

Justice Scalia (joined by Justice Thomas) concurred with the judgment, but thought it should have been much broader. Interestingly, he actually agreed that the Seattle precedent (as argued by the Sixth Circuit) probably applied to the MCRI case, but thought that the Seattle precedent itself should be overruled in its entirety. In Scalia’s view, the key question in determining the constitutionality of the MCRI (and other state ballot measures) was whether or not it had a racially discriminatory purpose. He argued it did not. He further argued that the MCRI case should have been strikingly simple. In his view, the Court was being asked whether the Fourteenth Amendment (which prohibits discrimination in public policy based on race) could forbid a policy (the MCRI) that prohibited discrimination based on race.

The opinions of Justices Kennedy, Breyer, and Scalia provide an interesting example of a collective decision (to uphold the MCRI) agreed upon despite broad disagreement on the reasons for making it. For the purposes consensus-building, the broader lesson from this is perhaps that focusing on narrower practical questions can be a constructive starting point on issues for which broad disagreement on the larger guiding philosophies exists.

Justice Sotomayor (joined by Justice Ginsburg) disagreed with the judgment, arguing that the MCRI should be struck down, in what the New York Times described as “the longest, most passionate and most significant dissent of her career.” In her view, the MCRI was the latest in a long history of efforts by a majority to stymie the political participation rights of racial minorities. She provided examples from this history, including certain states preventing minorities from voting, states using gerrymandering and ballot-box literacy tests to prevent minorities from voting, and lastly, states (as in the Seattle case) changing the political process in ways that made it more difficult for minorities to implement racial integration policies (even if this was not the intent, she adds). In each of these examples, the Supreme Court intervened, and so should it here (in the MCRI case), she argued. She disagreed with the narrower interpretation of the Seattle precedent by Justices Kennedy, Roberts, and Alito, and disputed Justice Kennedy’s argument that the Michigan university admissions policies at issue were undemocratic (because the boards of trustees, which are elected, have authority over these policies, even if they sometimes delegate this authority to faculty). She argued that Michigan voters who wanted to change the admissions policies could have lobbied current board members or elected different ones. By instead moving the decision to the state constitution level (through the MCRI), they had changed the political process to the unique disadvantage of minorities, which violated the Fourteenth Amendment under the Seattle precedent. She cited declines in minority enrollment rates at Michigan universities post-2006, as evidence of this disadvantage.

There were a couple of testy exchanges between the opinion of Justice Sotomayor and those of Chief Justice Roberts and Justice Scalia that gained attention in the press. For example, Justice Sotomayor’s dissent included the statement: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This was a recasting of a famous statement by Chief Justice Roberts from an earlier ruling related to affirmative action: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Sotomayor characterized the views of C.J. Roberts and some the other Justices as holding that “examining the racial impact of legislation only perpetuates racial discrimination.” To this, she responded, “This refusal to accept the stark reality that race matters is regrettable.” Chief Justice Roberts’ brief concurring opinion seemed to be mostly a response to Justice Sotomayor’s dissent, this passage in particular. In it, he stated:

“But it is not ‘out of touch with reality’ (quoting Justice Sotomayor) to conclude that (affirmative action) may…have the debilitating effect of reinforcing…doubt (about belonging), and—if so—that the (affirmative action does) more harm than good…To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ (quoting Justice Sotomayor) racial inequality…People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Justice Scalia sharply objected to what he perceived as a parallel drawn by Justice Sotomayor between the majorities in the southern states that passed the Jim Crow laws with the majority of Michigan voters that passed the MCRI, which he called “shameful”. In response, Justice Sotomayor added in a footnote that clarified that she did not mean to imply discriminatory intent in the Michigan voters.

These exchanges highlight some of the challenges in discussing sensitive issues such as those related to race. Few (certainly not any of the SCOTUS Justices) would dispute the painful history of racial discrimination in America. All of the Justices seemed to agree (as would most Americans, we suspect) that racial equality in opportunity, and in the democratic process, is desired. Thus, the disagreement was not about the underlying objective at issue (racial equality), but rather the merits of the strategy of affirmative action (and the constitutionality of different approaches to apply or limit it). However, even a disagreement as seemingly narrow as this can be sensitive when it touches bedrock values, personal identities and experiences, painful histories, and comes with high stakes (college admissions decisions have major impacts on people’s lives and livelihoods). The issues of economic inequality facing racial minorities, minority under-representation in higher education, and related affirmative action had all touched Justice Sotomayor (of Puerto-Rican descent) personally. She had written in a recently-published memoir that she had “lived the day-to-day reality of affirmative action”, growing up poor in a mostly Puerto-Rican neighborhood of New York City, and crediting her admission to Princeton as an undergraduate to affirmative action, where she went on to excel. The MCRI (and the opinions of the other Justices) dismantled a system she perceived as allowing her to break her own cycle of poverty, and thus would likely prevent other minority students from sharing her success story. To Justices Scalia and Roberts, perceived comparisons of the MCRI (which Justice Scalia made clear he supported, beyond affirming its constitutionality, in his opinion) to more invidious instances of discrimination, such as the Jim Crow laws, maligned their well-intentioned views on affirmative action as counter-productive in some instances to racial equality.

And yet, even with these testy exchanges (which were actually quite civil), we think that the opinions in the MCRI case provide a strong example of reasoned, constructive dialogue on a highly sensitive issue. For the most part, all of the Justices took pains to not make their arguments personal, and to focus on the facts of the case. In no instance, for example, did Justice Sotomayor accuse any of the other Justices with whom she disagreed of being racist. Nor did any of the other Justices (e.g. Justices Scalia or Roberts) accuse Justice Sotomayor of letting her own experience cloud her judgment. Recognizing the diversity in circumstances and types of affirmative action, all of the Justices (except arguably Justice Scalia) took pains to not make a general ruling on the merits of affirmative action itself, focusing instead on the MCRI specifically. The focus, nuance, and objectivity of this debate, despite the sensitive topic, are characteristics we aspire to.

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