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.”
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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