The oral argument in last week’s Prop. 8 case, Hollingsworth v. Perry, suggested that the justices may be skeptical of the Hunter-Seattle doctrine. While PLF has taken no position on the merits of the Prop. 8 case, the United States, as amici, put forth a legal theory that relates to a doctrine in which PLF has been intimately involved. The Solicitor General’s political process argument is an application of the Hunter-Seattle doctrine, which holds that a state that has a policy that might benefit a minority cannot amend its law to forbid the policy, because this would make it more difficult for supporters of the policy to reenact it. Much of PLF’s work in this area has been in its defense of California’s Proposition 209 which prohibits any discrimination on the basis of race, including racial preferences. This state constitutional provision has been challenged repeatedly under Hunter-Seattle because Prop. 209 makes it more difficult for state universities to use racial preferences in their admissions processes and for the state to award contracts on the basis of race..
Next term, the Supreme Court will consider Schuette v. Michigan Coalition to Defend Affirmative Action, a Hunter-Seattle challenge to Michigan’s Proposal 2 which, like Prop. 209, prohibits any government discrimination or preferential treatment on the basis of race. PLF filed an amicus brief supporting the voters of Michigan that enacted the referendum. Proposal 2 prohibits the University of Michigan from using race in its admissions process. The Coalition to Defend Affirmative Action sued. It argues that supporters of racial preferences, like the plaintiffs, would have to pursue a constitutional amendment to resurrect the programs. Because racial minorities might think that affirmative action is in their interest – an empirical assumption that is looking increasingly unlikely – the plaintiffs argue that Proposal 2 violates Hunter-Seattle.
Many of the problems that PLF has raised with the Hunter-Seattle doctrine were raised by the justices in response to the SG’s argument last week. For example, the Hunter-Seattle doctrine makes policies like affirmative action effectively mandatory in some states, but wholly optional in others. This makes no sense. The Constitution sets a national standard, not a patchwork of requirements that vary by state. Justice Ginsburg recognized this problem in the SG’s argument:
JUSTICE GINSBURG: General Verrilli, I could understand your argument if you were talking about the entire United States, but if the State has done absolutely nothing at all, then it can do as it will?
Justice Breyer seemed to share Justice Ginsburg’s concern:
JUSTICE BREYER: [A] State that does nothing hurts them much more, and yet your brief seems to say it’s more likely to be justified under the Constitution. I’d like to know with some specificity how that could be.
As did Justice Sotomayor;
JUSTICE SOTOMAYOR: General, there is an irony in that, which is the States that do more have less rights.
JUSTICE KENNEDY: [The Ninth Circuit] basically said that California, which has been more generous, more open to protecting same-sex couples than almost any State in the Union, just didn’t go far enough, and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.
JUSTICE ALITO: [A]re you seriously arguing that if the case before us now were from a State that doesn’t provide any of those benefits to same-sex couples, this case would come out differently?
And Chief Justice Roberts:
CHIEF JUSTICE ROBERTS: So it’s got to happen right away in those States where same-sex couples have every legal right that married couples do. But you can wait in States where they have fewer legal rights?
Also, the Hunter-Seattle doctrine is premised on the notion that the challenged law subjects the proponents and opponents of a policy to unequal political burdens. But, rather than requiring equal political burdens, the Hunter-Seattle doctrine guarantees that one side of a political conflict must have its way. Michigan voters that want to resume racial preferences would need a majority of the voters to support a referendum amending the state Constitution. This is precisely what the proponents of Proposal 2 were required to do in order to adopt the ban. Justice Alito recognized that this problem too was present in the SG’s argument:
GENERAL VERRILLI: [Proposition 8 is] a permanent ban. It’s in the Constitution. It’s supposed to take this issue out from the legislative process. So that’s the first point.
JUSTICE ALITO: Well, just in response to that, of course the Constitution could be amended.
The Hunter-Seattle doctrine only applies to states that have policies like racial preferences in place when the ban was enacted. If the state never had the policies, or repealed the policies first and then banned them, there would be no constitutional violation. The Chief Justice noticed this problem in the SG’s argument as well.
CHIEF JUSTICE ROBERTS: So your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
Along with Justice Ginsburg:
JUSTICE GINSBURG: Suppose one of theses States repeals its civil union laws?
GENERAL VERRILLI: It would be a different case
Under the Hunter-Seattle doctrine, General Verrilli is correct; it would be a different case. But this highlights the logical incoherency of the doctrine. If the University of Michigan and the other state universities stopped using race in admissions before Proposal 2 was adopted, there would be no constitutional violation. Because the universities were using racial preferences when Proposal 2 was adopted, the Sixth Circuit Court of Appeals declared it unconstitutional. There’s no logic to such a rule.
The justices’ skepticism of the political process argument could foreshadow the end of the Hunter-Seattle doctrine when the justices consider it next term. It’s noteworthy that much of this skepticism came from those justices that are considered more liberal. It will be interesting to watch whether these same justices remain skeptical when these issues crop up again next term.