Why the Supreme Court Sidesteps Race

The opinions in Tuesday’s affirmative-action case offer insight into what justices are thinking.

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg wait for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC.
National Journal
Matt Berman and Elahe Izadi
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Matt Berman Elahe Izadi
April 23, 2014, 1 a.m.

The Su­preme Court’s de­cision Tues­day to up­hold Michigan’s af­firm­at­ive-ac­tion ban largely avoided rul­ing on the vir­tues of race-con­scious policies. In­stead, the Court ruled 6-2 that states have the the right to ban them.

But the opin­ions from the justices do shed light on the Court’s view of race in Amer­ica today, and fore­tell what’s to come from the high court.

In his opin­ion for the Court’s ma­jor­ity, Justice An­thony Kennedy didn’t really ques­tion the con­sti­tu­tion­al­ity of race-based policies. “The con­sti­tu­tion­al valid­ity of some of those choices re­gard­ing ra­cial pref­er­ence is not at is­sue here,” he wrote. “The hold­ing in the in­stant case is simply that the courts may not dis­em­power the voters from choos­ing which path to fol­low.” Justice Steph­en Brey­er, in an un­usu­al con­cur­rence with the right wing of the Court, wrote along sim­il­ar lines. “I con­tin­ue to be­lieve that the Con­sti­tu­tion per­mits, though it does not re­quire, the use of the kind of race-con­scious pro­grams that are now barred by the Michigan Con­sti­tu­tion,” he wrote.

But oth­er justices went broad­er, giv­ing a rare in­sight in­to just how the Court is think­ing about race in Amer­ica.

In a short, con­cur­ring opin­ion, Chief Justice John Roberts ex­pli­citly ques­tioned the wis­dom of af­firm­at­ive-ac­tion policy. He sug­ges­ted that ra­cial-pref­er­ence policies might “do more harm than good” by re­in­for­cing doubt in minor­it­ies that they truly be­long in Amer­ica.

Justice Ant­on­in Scalia went fur­ther. “Nev­er mind that it is hotly dis­puted wheth­er the prac­tice of race-based ad­mis­sions is ever in a ra­cial minor­ity’s in­terest,” he wrote (it­al­ics are his). “And nev­er mind that, were a pub­lic uni­versity to stake its de­fense of a race-based-ad­mis­sions policy on the ground that it was de­signed to be­ne­fit primar­ily minor­it­ies (as op­posed to all stu­dents, re­gard­less of col­or, by en­han­cing di­versity), we would hold the policy un­con­sti­tu­tion­al.”

Scalia went on to write that the Court has no real place get­ting in­volved in ra­cial policy, or “the dirty busi­ness of di­vid­ing the Na­tion ‘in­to ra­cial blocs.’ ” “That task,” he writes, “is as dif­fi­cult as it is un­ap­peal­ing.”

Justice So­nia So­to­may­or dis­agrees. In a lengthy, of­ten emo­tion­al dis­sent, So­to­may­or, who was joined by Justice Ruth Bader Gins­burg, ex­plained just why the Su­preme Court must take on ra­cial is­sues in Amer­ica. “To know the his­tory of our Na­tion,” she writes, “is to un­der­stand its long and lam­ent­able re­cord of sty­mie­ing the right of ra­cial minor­it­ies to par­ti­cip­ate in the polit­ic­al pro­cess.”

So­to­may­or con­tin­ues:

Race mat­ters. Race mat­ters in part be­cause of the long his­tory of ra­cial minor­it­ies’ be­ing denied ac­cess to the polit­ic­al pro­cess…. And al­though we have made great strides, “vot­ing dis­crim­in­a­tion still ex­ists; no one doubts that.” (Shelby County, 570 U.S.)

Race also mat­ters be­cause of per­sist­ent ra­cial in­equal­ity in so­ci­ety — in­equal­ity that can­not be ig­nored and that has pro­duced stark so­cioeco­nom­ic dis­par­it­ies…. And race mat­ters for reas­ons that really are only skin deep, that can­not be dis­cussed any oth­er way, and that can­not be wished away. Race mat­ters to a young man’s view of so­ci­ety when he spends his teen­age years watch­ing oth­ers tense up as he passes, no mat­ter the neigh­bor­hood where he grew up. Race mat­ters to a young wo­man’s sense of self when she states her ho­met­own, and then is pressed “No, where are you really from?,” re­gard­less of how many gen­er­a­tions her fam­ily has been in the coun­try. Race mat­ters to a young per­son ad­dressed by a stranger in a for­eign lan­guage, which he does not un­der­stand be­cause only Eng­lish was spoken at home. Race mat­ters be­cause of the slights, the snick­ers, the si­lent judge­ments that re­in­force that most crip­pling of thoughts: “I do not be­long here.”

In my col­leagues’ view, ex­amin­ing the ra­cial im­pact of le­gis­la­tion only per­petu­ates ra­cial dis­crim­in­a­tion. This re­fus­al to ac­cept the stark real­ity that race mat­ters is re­gret­table. 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 ap­peal from So­to­may­or and Gins­burg for deal­ing with race, dis­cuss­ing race, and rul­ing on race is posed not only for this par­tic­u­lar case, but for fu­ture cases that could come up on af­firm­at­ive ac­tion, vot­ing rights, or oth­er race-re­lated is­sues. And if Tues­day’s opin­ions from the ma­jor­ity is any guide, the Court’s left wing may have trouble for years to come con­vin­cing a ma­jor­ity to grapple with race. Right now, it seems, a ma­jor­ity of the Court would rather put race be­hind it.

Thursday’s case isn’t the first to show what dir­ec­tion the Court may be headed in. Michigan it­self has be­come a battle­ground for af­firm­at­ive-ac­tion cases. Ten years ago, the Court ruled the Uni­versity of Michigan’s law school could use race in its ad­mis­sions pro­cess. It also struck down the un­der­gradu­ate school’s use of a ra­cial “point sys­tem” in ad­mis­sions. In 2006, voters ap­proved the af­firm­at­ive-ac­tion ban that was at is­sue Tues­day.

Last year, the Court sidestepped mak­ing a sweep­ing rul­ing on af­firm­at­ive ac­tion in a case in­volving Uni­versity of Texas. Rather, the justices sent the case back to lower courts.

Sim­il­ar af­firm­at­ive ac­tion bans ex­ist in Ari­zona, Cali­for­nia, Flor­ida, Neb­raska, New Hamp­shire, Ok­lahoma, and Wash­ing­ton, and Tues­day’s rul­ing could give rise to more. Pub­lic uni­versit­ies where states have banned af­firm­at­ive ac­tion tend to en­roll few­er His­pan­ic and black stu­dents.

The out­come of the Michigan case doesn’t mean the end of ra­cial pref­er­ences in uni­versity ad­mis­sions in states without af­firm­at­ive-ac­tion bans. The high court af­firmed us­ing ra­cial pref­er­ences in ad­mis­sions in the Texas case in a 7-1 rul­ing last sum­mer. But the Court did make it harder for uni­versit­ies to use ra­cial pref­er­ences as a way to boost di­versity.

The ma­jor­ity of the Su­preme Court ap­pears to want to avoid a sweep­ing rul­ing over ra­cial equal­ity, to make the kind of rul­ing that has launched past courts in­to his­tor­ic­al fame or no­tori­ety. But by in­cre­ment­ally al­ter­ing the way states are able to handle ra­cial is­sues, the Court won’t be able to put off a date with the mo­nu­ment­al forever.

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