When the Supreme Court handed down yesterday’s decision upholding Michigan’s ban on affirmative action, the initial round of hysteria on the left didn’t last long. By afternoon, liberal bloggers and commentators were stressing that the decision in the Schuette case won’t mean the end of affirmative action as we know it. Above the Law, for example, offered three reasons affirmative action will still be okay. (1. “It’s up to the Voters”; 2. “College Admissions Committees are Smarter than Voters”; 3. “Private Schools will still be Awesome.”).These commentators are right: The practical effects of the Schuette decision, which holds that affirmative action isn’t constitutionally required, are far less dramatic than the Court’s recent decisions holding that affirmative action, in some circumstances, is constitutionally prohibited.
But the reaction missed a more basic point: Far from being only a limited disaster, the decision was, according to current Supreme Court precedents, constitutionally unsurprising and almost certainly correct.
Yes, Sonia Sotomayor’s powerful dissent was memorable in its description of the long and sorry history of state efforts to circumvent anti-discrimination laws. But it relied on a broad reading of a line of cases that the Court began to abandon more than a decade ago. That’s why Stephen Breyer didn’t have to “hold his nose” to join the five conservatives; he could do so in good conscience. After all, the central holding—that democratically accountable bodies should be free to accept or reject affirmative action—is entirely consistent with the philosophy of judicial restraint that he and other liberals have been urging the conservative justices to embrace in other affirmative action cases.
In a nutshell, the disagreement between Breyer and Sotomayor had to do with the scope of the so-called “political process” doctrine. In a series of cases beginning in the 1960s, such as Hunter v. Erickson and Washington v. Seattle School District, the Supreme Court held that when voters, in statewide popular referenda restructured the political process in ways that harmed minorities—by forbidding fair housing ordinances or bussing, for example—those referenda might violate the political process rights of minorities. The reasoning was that these changes forced minorities, and no other group, to convince a majority of all state voters to pass another state constitutional amendment in order to defend their interests.
These “political process” cases became constitutionally controversial in the 1990s, among liberals as well as conservatives, because they seemed to call into question the constitutionality of the entire referendum process itself. For example, when opponents of a Colorado anti-gay rights amendment challenged it in 1993, their lawyers refused to rely heavily on the “political process doctrine,” even though a lower court judge had invoked it. And, as Josh Blackman presciently noted months ago, when Anthony Kennedy struck down the anti-gay rights amendment in the landmark Romer v. Evans case in 1996, he pointedly declined to rely on the political process doctrine.
For all these reasons, the writing was on the wall for the “political process” doctrine long before an appeals court invoked it to strike down Michigan’s affirmative action ban in 2012. It was not a surprise that the Supreme Court reversed. In fact, it should be a relief to liberal supporters of the doctrine that the justices didn’t overturn it entirely, as Antonin Scalia and Clarence Thomas demanded. Instead, the conservative plurality of Kennedy, Samuel Alito, and Chief Justice John Roberts narrowed it to cases “in which the state action had the serious risk, if not purpose, of causing specific injuries on account of race,” as Kennedy wrote.
In cases like affirmative action bans, where citizens (including minority citizens) vigorously disagree about whether the policy in question are likely to harm minorities or help them, the conservatives held, the court should practice judicial restraint and defer to democratic decision making.
Breyer didn’t need to hold his nose to support this. Far from it. He enthusiastically defended the importance of letting democratically accountable bodies decide whether affirmative action should be adopted or rejected. Democratically unaccountable teachers and administrators, he stressed, had adopted Michigan’s affirmative action ban, and this distinguished it from the Seattle affirmative action plan that the Court struck down in 2007. Similarly, in his concurring opinion in Schuette, Breyer distinguished the earlier political process cases from the 1960s, 70s, and 80s:
Those cases involved a restructuring of the political process that changed the political level at which policies were enacted, while this case involves an amendment that took decision making authority away from unelected actors and placed it in the hands of the voters. Hence, this case does not involve a diminution of the minority’s ability to participate in the political process. Extending the holding of Hunter and Seattle to situations where decision making authority is moved from an administrative body to a political one would also create significant difficulties, given the nature of the administrative process. Furthermore, the principle underlying Hunter and Seattle runs up against a competing principle favoring decision making through the democratic process.
Liberal defenders of affirmative action should embrace Breyer’s reasoning, rather than reluctantly tolerating it. The framework provides a principled reason for criticizing conservatives when they resort to judicial activism to strike down state policies that permit affirmative action. As Breyer wrote: the Constitution “favors decision making though the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.”
At the end of his plurality opinion upholding the Michigan ban, Kennedy, like Breyer, offered an expansive paean to the idea that voters, rather than judges, should decide the future of affirmative action:
It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.
And yet, in 2007, over Breyer’s vigorous objection, Kennedy and the other conservatives took the opposite position, striking down an affirmative action policy that had been chosen by democratically elected officials. A new Pew poll suggests that Americans strongly support affirmative action programs by two to one margins. Let’s hope that when the time comes to decide the fate of affirmative action once and for all, Kennedy remembers his embrace of judicial restraint and follows Breyer’s lead in consistently deferring to democratic decisions rather than second-guessing them.
Jeffrey Rosen is the CEO and president of the National Constitution Center, and also the legal affairs editor of The New Republic. This article first appeared in The New Republic.
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