U.S. Supreme Court

Will Michigan affirmative-action ban survive? SCOTUS may vote to uphold it

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The fate of Michigan’s voter referendum banning affirmative action likely depends on Justice Anthony M. Kennedy, who sought to distinguish cases cited by a lawyer for the American Civil Liberties Union during oral arguments on Tuesday.

ACLU lawyer Mark Rosenbaum, representing those challenging the ban, had argued that the referendum known as Proposal 2 violated equal protection principles by changing the state’s political process in which minorities could press to make race a factor in university admissions, report SCOTUSblog, the New York Times, the National Law Journal, the Washington Post and the Los Angeles Times. Proposal 2 amended the state constitution to bar preferential treatment based on race, gender or ethnicity in public education, employment or contracting.

Those who advocate preferential university admission for children of alumni or for other groups, on the other hand, would not be required to change the state constitution to succeed, Rosenbaum said. That political process theory was the basis for two Supreme Court rulings, in 1969 and 1982, that struck down voter measures that burdened minorities.

According to SCOTUSblog, “Kennedy began looking for factual differences between the prior cases and the one now before the court. And then he showed real fascination with suggestions by Michigan’s Solicitor General, John J. Bursch, as to how the court could distinguish the prior precedents without having to overrule them.” But the NLJ says Kennedy “actively questioned both sides, but he seemed to weigh seriously the point that a constitutional amendment like Michigan’s was so permanent that it was almost impossible for minorities to seek a change in the policy.”

Most of the coverage suggested that the affirmative-action ban could be upheld. The Post said affirmative action supporters “faced an uphill battle” during the arguments; the New York Times said the court’s five conservative justices seemed “generally inclined to uphold the ballot measure”; the Los Angeles Times said the conservative justices signaled they were inclined to uphold the ballot measure. The NLJ, however, said the arguments “left affirmative action supporters more optimistic than they expected to be,” though Kennedy’s vote is far from certain.

Justice Elena Kagan is not participating in the case. If Kennedy votes with the liberals and the court splits 4-4, an appeals court decision striking down the affirmative-action ban would remain intact.

The case is Schuette v. Coalition to Defend Affirmative Action.

Prior coverage:

ABAJournal.com: “Chemerinsky: Campaign finance, affirmative action will top Supreme Court’s new term”

ABAJournal.com: “In ‘surprise development,’ SCOTUS agrees to consider a voter ban on affirmative action”

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