[NOTE: This post has been UPDATED]
Last November I wrote here …
The Sixth Circuit Court of Appeals recently decided that Michigan’s Proposition 2, which barred the state from discriminating against or giving preferences to anyone based on race, ethnicity, or gender, violates the 14th Amendment’s requirement of equal protection. (And people wonder why lawyers and even judges are so unpopular!)
… and at greater length, here, that
this decision will almost certainly be reviewed by the Supreme Court, not primarily because it is unusually stupid but because it conflicts with both old and recent decisions of even the notoriously liberal Ninth Circuit. Ironically, this decision is so bad that it may actually do some good before the Court can review it. In flatly rejecting the same argument made in the Michigan case (by the same lawyer) against California’s Prop. 209, a three judge panel of the Ninth Circuit ruled in April that “Grutter upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionallyrequired.” In holding that states are effectively prohibited from deciding that race-based preferences are impermissible, the Sixth Circuit’s overreaching Egregious Eight may have inadvertently driven a stake through the heart of affirmative action. Their extreme decision may persuade Justice Kennedy and hence a conservative majority to hold in the upcoming Fisher decision that Grutter must be gutted, not tweaked, that the only “way to stop discrimination on the basis of race,” as Chief Justice Roberts famously said in Parents Involved, “is to stop discriminating on the basis of race.”
Most Court observers believed that the Supremes would wait until after ruling in Fisher to decide whether to review the Sixth Circuit’s insult to the 14th Amendment, Schuette v. Coalition to Defend Affirmative Action, but earlier today the Court decided to hear the case next fall. “That the court agreed to hear the Michigan case before deciding the Texas case is unusual,” Reuters reported this morning. “The court’s normal practice is to wait until it has issued a ruling before agreeing to hear another case on a related issue.”
Although Reuters mentioned that the Sixth Circuit’s decision striking down Michigan’s constitutional amendment was “sharply divided,” it neglected to mention the perfectly partisan nature of the division. As Roger Clegg pointed out here, the Sixth Circuit’s decision
was driven by its politically correct result, which is why the decision was 8-7 along partisan lines: Every vote in the majority was by a Democrat-appointed judge (except, technically, for one who was originally nominated by President Clinton late in his term and then, in a misguided gesture of conciliation, renominated by President Bush at the beginning of his), and every dissenter was appointed by a Republican president. Elections do indeed have consequences.
Reuters, of course, was not alone. Neither the Washington Post nor NBC News nor USA Today nor the Christian Science Monitor nor the Los Angeles Times nor Politico nor Bloomberg nor CNN saw fit to mention that all eight of the Sixth Circuit judges who held that the 14th Amendment prevents a state from prohibiting preferential treatment based on race were nominated by Democratic presidents, and all seven who dissented were nominated by Republicans. Huffington Post came closest but cleverly disguised the naked partisan split: “The 6th Circuit divided along ideological lines, with its more liberal judges in the majority.” Alone among the major media outlets I examined Adam Liptak of the New York Times deserves credit for writing that “[t]he eight judges in the majority were all nominated by Democratic presidents. All of the seven judges in dissent were nominated by Republican presidents” (with the “wrinkle” of the one judge who was originally nominated re-nominated by President Bush as part of an unfortunate effort at compromise).
How sad that liberalism has now degraded itself so thoroughly that it has become synonymous with support for treating some Americans better and others worse because of their race.
I think (or perhaps hope) the Associated Press is engaging in some wishful thinking when it reports that the Court’s decision to take the Michigan Prop. 2 case
offers an intriguing hint that the justices will not use a separate challenge already pending from Texas for a broad ruling bringing an end to the consideration of race in college admissions.
To be sure, the two cases involve different legal issues. The University of Texas dispute, with arguments already completed and a ruling possible soon, centers on the use of race to fill some slots in the school’s freshman classes. The Michigan case asks whether a voter-approved ban on affirmative action in college admissions can itself violate the Constitution.
But the broadest possible outcome in the current Texas case — overruling the court’s 2003 decision that allows race as a factor in college admissions — would mean an end to affirmative action in higher education and render the new Michigan lawsuit irrelevant.
No, it wouldn’t. Fisher concerns only racial preference in college admissions. Overruling the use of race in college admissions would not touch the use of racial preference by the state anywhere else. Proposition 2, the Michigan Civil Rights Initiative, amended the state constitution to prohibit any state agency from granting preferential treatment based on race, ethnicity, or gender, a measure the eight Democrat-appointed judges on the Sixth Circuit said violated the 14th Amendment’s guarantee of equal protection.