The best possible spin on the Supreme Court’s decision on affirmative action in Michigan is that it doesn’t end affirmative action.
The decision did not say affirmative action was unconstitutional.
It merely narrowly decided that Prop.2, the Michigan initiative that voters passed to end race-based affirmative action in that state could be applied and that the equal protection clause was not violated.
It even sounds good. Let the voters decide, right?
OK, but why do we leave it to the voters to decide on that issue and that issue alone, and not on every single item that the University officials oversee?
Why take that power away from the professional educators?
As I went through the 6-2 opinion, I wasn’t that surprised that someone liberal like Breyer would vote with Kennedy, Roberts, Alito, Scalia and Thomas.
Breyer stated he was for some forms of affirmative action, but didn’t see why the voters shouldn’t be allowed to weigh in.
But then there was Sotomayor’s lengthy dissent, which took the hardline, that this ruling indeed was setting up the situation where down the line we might see the tyranny of the majority, and see the violation of minority rights under the equal protection clause.
That’s what was at stake here.
The majority of justices seemed happy enough to see the voters figure out where they stand on affirmative action.
After reading Sotomayor’s minority dissent, I’m not sure if that’s such a great thing.
We know how fair elections are now, with money driving everything.
That means we’ll probably see a lot more SCA-5 style battles–until the court makes yet another ruling on the constitutionality of race based methods in university admissions.
UPDATE: 4/23/2014
It’s not surprising that the courts want to get out of the race business. Just like the legislatures have gotten out of legislating by relinquishing their role to the initiative process for the tough issues.
So if the elections are so important, why do electoral rights seem to be under attack? From the Voting Rights Act provisions, to campaign finance, has there been a more activist Supreme Court to reverse the rights of minorities?
And now elections are the preferred way to settle racial fights? Sounds like SCOTUS just gave itself cover for its horrendous decisions, putting it all on the electorate.
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