Tuesday, October 15, 2013
Unlike the other, good blogging on the Supreme Court this week (see here and here), I'm going to do a lazy post on the argument today in Schuette. This is the case in which plaintiffs argued that the Michigan constitutional amendment banning affirmative action in higher education is unconstitutional. That argument relies on cases such as Romer v. Evans, in which the Court struck down a Colorado law prohibiting localties from passing measures forbidding discrimination based on sexual orientation. Michigan, however, argues that this amendment is different because it is prohibiting discrimination, not encouraging discrimination. Not surprisingly, that argument seemed to have a receptive argument in the Court.
The plaintiffs' argument certainly has some merit, but it's very difficult to believe that at least 5 members of the Court won't be swayed by the combination of 1) a voter-approved amendment that 2) enshrines colorblind admissions. We know that 4 Justices would hold that colorblindness is required, so Kennedy is the only additional vote needed. He wrote Romer and isn't fully in the colorblind camp, but but my money is on him being OK with this amendment. That said, I still don't think that this will lead the Court to strike down all diversity-based affirmative action in higher education--Fisher was only a few months ago and the votes weren't there. But stay tuned.