Attorney General Bill Schuette

By:  Timothy P. Flynn

Yesterday, the U.S. Supreme Court issued a seminal opinion deciding the constitutionality of Michigan's 2006 voter-initiative law, known as Proposal 2, that prohibited public colleges and universities from granting preferential treatment to racial minorities when making admission decisions.   The case, Schuette vs Coalition to Defend Affirmative Action, was a big win for Michigan Attorney General Bill Schuette.

In announcing the SCOTUS decision, Justice Anthony Kennedy insisted the High Court was not ruling substantively on the race issue but rather, only on whether courts have the authority to "disempower" voters from making decisions on such substantive, and admittedly divisive, issues.  Justice Kennedy's so-called swing-vote controlled the outcome in the 6-2 decision [Justice Elena Kagan abstained due to her earlier involvement in the case as the U. S. Solicitor General].

SCOTUS legal scholar and blogger Lyle Denniston noted that conservative Justices John Roberts, Jr. and Samuel Alito, Jr. would have gone further than the majority by declaring:

that no policy that takes race into account can be upheld if it is not a direct remedy for intentional racial discrimination — in other words, they would not allow race-conscious remedies for programs that have a more negative effect on minorities when discrimination was not intended.

Justice Sonya Sotomayor, on the other hand, issued a lengthily 58-page dissent which decried that the majority decision would make it far more difficult, if not impossible, for racial minorities to prosecute legitimate affirmative action programs like the public university admission programs at issue in the Schuette case.  Well, the problem with her analysis is that this case now holds that, if Michigan voters properly affirm an initiative, the courts cannot interfere.  While Justice Sotomayor may believe the public university affirmative action admission policies make sense, are just and fair, Michigan voters have decided otherwise.

From time to time, this blogger finds himself in the company of Bill Schuette like last May, where we discussed this case on the occasion of oral arguments recently conducted in Washington, D.C..  Mr. Schuette was confident of the AG's legal position, commenting that, "what's more equal than equality?"

He makes a compelling point folks.  And the AG's position has now prevailed through SCOTUS endorsement.

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