April 23, 2014

Schuette victory: The Breyer concurrence

By Joshua P. Thompson Senior Attorney

Yesterday I discussed Kennedy’s lead opinion in Schuette v. Coalition to Defend Affirmative Action as well as Justice Scalia’s concurring opinion.  Justice Breyer also voted to uphold Proposal 2, although his reasoning differs significantly from the other two opinions.  With Justice Kagan’s recusal, Breyer’s vote resulted in a resounding 6-2 victory for Proposal 2’s defenders.

Like Justice Kennedy, Justice Breyer argues that the political structure doctrine from Hunter and Seattle is still good law.   Unlike the lead opinion, however, Justice Breyer does not seek to cabin its applicability. Instead, Breyer is of the view that the doctrine simply has no role to play in this case.

Justice Breyer begins his opinion by noting that the decision has no impact on permissive race-conscious affirmative action programs.  He even goes further to explain how race-balancing assignment policies in high schools are constitutional — something the Supreme Court has never ruled.  But Breyer is quick to note that the Constitution does not require such programs: “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.”

The thrust of Breyer’s opinion is simply that the political structure doctrine has no applicability here.  Breyer repeatedly emphasizes that it is called the political structure doctrine.  Here Michigan took the decision over race-based admissions preferences out of the hands of unelected school administrators.  By mandating equal treatment at the constitutional level, Michigan voters have made the decision more political, not less.

Before Proposal 2, the decision over race-based admissions was made by individuals with no accountability. According to Justice Breyer, the political process doctrine is not offended when decisions are made that increase political accountability. “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.”

Given Breyer’s view that the Constitution is designed to protect democracy (and not liberty), his opinion is not all that surprising.   But even though he voted to uphold Proposal 2, his reasoning is not satisfying.  Would states that have not delegated the authority to enact race-conscious admissions decisions to unelected officials violate the political structure doctrine?  Fortunately, Breyer’s opinion was not necessary to the holding of the Court, so that issue is unlikely to have a future.

 

 

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