Schuette victory: The plurality (Kennedy) opinion

April 22, 2014 | By JOSHUA THOMPSON

As I predicted last year, Justice Breyer voted to uphold Proposal 2.  With Justice Kagan’s recusal, that means the Court voted 6-2 in favor of the constitutionality of the Michigan Amendment. Despite the overwhelming support for the constitutionality of Proposal 2, the Justices differed greatly on their reasoning.  In this post, I discuss the lead opinion from Justice Kennedy, which was joined by the Chief Justice and Justice Alito.  I will tackle the subsequent opinions in future posts. 

In broad terms, Justice Kennedy’s opinion would save the political structure doctrine — i.e. the Hunter/Seattle doctrine — but significantly restrict its applicability.  The heart of the opinion concerns a proper reading of Hunter and Seattle.  Under Justice Kennedy’s view, those cases stand for the uncontroversial point that the state may not be complicit in racial discrimination.

Justice Kennedy finds no problem with Hunter.  That case involved, “circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing.” By making it more difficult for individuals to prove discrimination in housing, the City of Akron was complicit in that underlying private racial discrimination.  Accordingly, Hunter  stands for the “unremarkable principle that the State may not alter the procedures of government to target racial minorities.”

In contrast, Justice Kennedy takes a hatchet to the Seattle opinion.  He begins by explaining how that case also concerned past intentional discrimination.  The government action at issue “had the serious risk, if not purpose, of causing specific injuries on account of race.”  But even if it only involved de facto discrimination, the legality of race-conscious remedies for unintentional discrimination was not raised.  Thus, only after assuming that the there was a constitutional injury at stake, was the Seattle Court able to find “that the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit.”

The opinion, however, goes on to explicitly reject the  broad dicta from Seattle that the Sixth Circuit relied upon in striking down Proposal 2.  “That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.”

If Justice Kennedy’s discussion of Hunter and Seattle comprise the heart of the opinion, the discussion that follows is the soul.  He explains how an expansive reading of Hunter/Seattle requires grouping individuals along racial lines and expecting them to vote, act, and think alike.  However, as Justice Kennedy rightly recognizes  “[i]t cannot be entertained as a serious proposition that all individuals of the same race think alike. … And if it were deemed necessary to probe how some races define their own interest in political matters still another beginning point would be to define individuals according to race.”  Justice Kennedy concludes this important point by noting that such an expansive reading of Hunter/Seattle would make courts inquire into demeaning stereotypes and “classifications of questionable constitutionality.”  In other words, an expansive reading of the doctrine would make courts themselves guilty of violating it!

The opinion also makes the important point that an expansive reading of Hunter/Seattle has no logical stopping point.  Any governmental action can be said to restructure the political process; the nature of government action means that something is being removed from one level of decision making and placed at a different level.  Justice Kennedy explains that actions from tax policy to the naming of a public school could implicate the political structure doctrine as understood by the Sixth Circuit.  “Racial division would be validated, not discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain in force.”

Justice Kennedy also explains how striking down Proposal 2 would affect other states.  Here, the opinion talks at length about a PLF case — Coral Construction v. City of San Francisco — and how many other states have decided to prevent governments from discriminating on the basis of race.  Courts should not be the final decision makers on questions of policy.  A decision striking down Proposal 2 would be “inconsistent with the underlying premises of a responsible, functioning democracy.”  Hot button issues that do not infringe constitutional rights, should be left to the political process.

One last point should be made about Justice Kennedy’s opinion.  Although not central to the holding, the opinion contains some fantastic language concerning the role of the courts in protecting individual liberty.  “The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.”  He goes on: “Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.”

I think “making freedom greater and more secure” should be the next PLF bumper sticker.