108 Page Headache: Plurality Upholds Michigan's Aff. Action Ban - U.S. Supreme Court
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108 Page Headache: Plurality Upholds Michigan's Aff. Action Ban

One hundred and eight pages. A 3-2-1-2 split, with a separate concurrence and a recusal. Justice Breyer sided with the conservative wing of the court. Justice Sotomayor wrote for 57 pages in dissent, and got personal with the other justices, leading to a two-page separate concurrence/rebuttal by Chief Justice Roberts.

In other words, this is a massive headache of an opinion, with a holding that narrows past SCOTUS precedent and allows states to ban race conscious admissions policies.

Sixth Circuit: Political Process Silences Minorities

The split Sixth Circuit held that the state's ban on Affirmative Action, passed via initiative as an amendment to the state's constitution, was unconstitutional under past Supreme Court precedent, as it puts minorities in a disadvantageous position in the political process -- while it may be easy for the majority to pass a ban on affirmative action, it's much more difficult (if not impossible) for minorities to do the same.

Three Justice Plurality: We're Not Playing the Political Process Game

Justice Kennedy, writing on behalf of himself, the Chief Justice, and Justice Alito, held that the Sixth Circuit's opinion was based on an overbroad interpretation of Supreme Court precedent. In those cases, involving housing laws and busing, there "was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated."

And then there was Seattle, a case that Kennedy argued used "broad language" that was "well beyond the analysis needed to resolve the case." This language, which led to the Sixth Circuit's broad interpretation of the case's holding, stood for the notion that whenever a law makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest," that law is subject to strict scrutiny.

Kennedy's plurality held that this was a misinterpretation of that precedent, and incompatible with the Court's equal protection jurisprudence.

"It cannot be entertained as a serious proposition that all individuals of the same race think alike," he noted. "Yet that proposition would be a necessary beginning point were the Seattle formulation to control."

Three Justice Plurality: We Call it Democracy

Instead, according to the plurality, this law should be viewed as a proper exercise of the democratic process.

"[A] democracy has the capacity--and the duty--to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale [sic] deliberation to rise above those flaws and injustices," Kennedy wrote. "That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. 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. "

So what's the final takeaway?

"The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow."

More to Come

That's a lot to digest, but it's also only the first quarter of the opinions. We'll have additional coverage, including the back-and-forth between Justice Sotomayor and Chief Justice Roberts, Justice Breyer's siding with the conservatives, and Justices Scalia and Thomas arguing against stare decisis, later this week.

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