Justices Scalia and Thomas counted for two of the six votes in favor of Proposal 2’s constitutionality. Unlike Justice Kennedy, however, Justice Scalia’s opinion — joined by Justice Thomas — would not save the political structure doctrine. Scalia’s concurrence argues that Hunter and Seattle should be left on the ash heap of history.
Justice Scalia’s concurrence begins with a rhetorical flourish: “Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” In other words, can the Equal Protection Clause be violated by adopting it? Of course not argues Justice Scalia — as did PLF in its amicus brief in this case — echoing similar points made by the Ninth Circuit when in ruled Proposition 209 constitutional in 1997.
This opening salvo is only the beginning of a classic Scalia opinion. Shortly thereafter he notes that the very thing the plaintiffs are arguing for has been repeatedly ruled unconstitutional by the Supreme Court. “[W]ere a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.” After repeatedly noting the absurdity of the plaintiffs argument, Scalia’s begins to take apart Hunter and Seattle — and the Kennedy bloc’s reading of those cases.
With respect to Hunter, Scalia argues the decision does not turn on whether racial minorities were “targeted,” as the plurality argues. Instead, the Hunter Court “bypass[ed] the question of intent entirely, satisfied that its newly minted political-process theory sufficed to invalidate the charter amendment.” Similarly, Scalia disagrees with Kennedy on the holding of Seattle. According to Scalia, the plurality “describes what our opinion in Seattle might have been, but assuredly not what it was.”
After explaining why Hunter and Seattle cannot be reconciled with Proposal 2, Scalia explains why those precedents ought to be overruled. He begins with its “triggering prong,” which requires courts to determine if a law has a “racial focus.” This is an improper role for the courts because it requires courts to divide the nation into “racial blocs,” and determine how a particular racial group thinks, acts, and votes. This is just as pernicious when a Court does it as when a state does. Second, the “racial focus” inquiry turns equal protection into a group right, not an individual right. And since only certain groups are entitled to protections, equal protection for all individuals morphs into equal protection for some according to their racial identity.
Scalia finds the racial focus inquiry “appalling,” but its the second prong of Hunter/Seattle that he finds “absurd.” By requiring courts to strike down legislation that removes the decision making authority from a lower branch of government, the political structure doctrine “swallows the rule of structural state sovereignty.” He explains the absurd process with a point:
If indeed the Fourteenth Amendment forbids States to “place effective decisionmaking authority over” racial issues at “different level[s] of government,” then it must be true that the Amendment’s ratification in 1868 worked a partial ossification of each State’s governing structure, rendering basically irrevocable the power of any subordinate state official who, the day before the Fourteenth Amendment’s passage, happened to enjoy legislatively conferred authority over a “racial issue.
Basically Scalia is saying that if the political structure doctrine works as its supporters argue, then the day the Fourteenth Amendment was ratified, states lost all authority to legislate over racial issues. So a state that had allowed cities to determine whether to enact fair housing laws, would be prohibited from passing a statewide law requiring non-discrimination in housing after ratification of the Fourteenth Amendment. Or, as is the case here, a state that allowed universities to determine whether to employ race-conscious admissions policies, is prohibited from revoking the power after adoption of the Fourteenth Amendment. “The mere existence of a subordinate’s discretion over the matter would work a kind of reverse pre-emption.”
The final section of Scalia’s concurrence explains an additional reason to overrule Hunter and Seattle. According to Scalia, those cases have already been effectively overruled by Washington v. Davis and Arlington Heights, which require a finding of intentional discrimination before the Equal Protection Clause is implicated. The political process doctrine eschews discriminatory intent for disparate impact on racial groups. But, a finding of discriminatory intent is an “exception-less” requirement under the Equal Protection Clause.
PLF’s amicus brief in the Supreme Court made this point in another way. We argued that Arlington Heights provides a constitutional framework to challenge facially neutral legislation like Proposal 2. The political structure doctrine is no longer needed. The reason that the plaintiffs in this case avoided Arlington Heights is because they cannot prove that it was adopted with discriminatory intent. And even if Scalia is right that the plaintiffs will try to “cook up” some foul purposes for Proposal 2, at least they would be using a logical and coherent constitutional framework.