October 15, 2013

The oral argument in Schuette v. CDAA

By Joshua P. Thompson Senior Attorney

I just got out of the oral argument in Schuette v. Coalition to Defend Affirmative Action.  We all owe the solicitor general for the State of Michigan a hearty thank you for the excellent defense of Proposal 2.  He was fantastic today.  I left the courtroom knowing the defenders of equality under the law put forth their best argument.

This should be an easy case. The Michigan voters changed their Constitution in a way consistent the federal Constitution’s guarantee of equal protection. They prohibited their government from ever classifying individuals along racial lines. Not only is that consistent with the federal Equal Protection Clause, it furthers the very promise contained in it. No state shall deny equal protection of the laws. Michigan agrees, and will not deny any individual — regardless of skin color — equal protection of the laws.

Standing in the way of this straightforward reading of the Equal Protection Clause are two old Supreme Court cases called Hunter and Seattle. Both cases were decided before the Supreme Court made clear in Croson, Adarand, Grutter, and PICS that all racial classifications are suspect. Nevertheless, the proponents of race-based affirmative action seized on outdated language from those opinions, in attempt to strike down Michigan’s Proposal 2. From the look of things today, their attempt will fail.

The Solicitor General for Michigan began the argument, and — as I noted at the outset — was outstanding. He hammered home the point that the Equal Protection Clause does not require what it barely permits. That is, racial preferences cannot be required, since they are rarely permissible under the Constitution. Further, the Solicitor made compelling arguments for distinguishing the Hunter and Seattle cases. And, he even noted — as Pacific Legal Foundation argued in its amicus brief to the Court — that to the extent those cases stand for a proposition that would require the Court to strike down Proposal 2, those cases must be overruled.

Throughout his argument, the Solicitor General of Michigan remained cool, despite hard questioning from Justice Sotomayor. He explained how the University of Michigan has not become segregated under Proposal 2, and he also explained how Proposal 2 does much more than simply affect university admissions. It prohibits preferential treatment in all phases of Michigan government. And just like the Fair Housing Act addresses racial matters without being a suspect racial classification, so too does Proposal 2.

The same cannot be said for the proponents of racial preferences. As far as courtroom demeanor is concerned both oralists were off their game. They often pointed fingers or interrupted the Justices, and even went silent in the face of some tough questions. For example, when Shanta Driver, the attorney for BAMN, began her argument, Justice Scalia asked her if there is any case in the history of the Supreme Court that holds that the Equal Protection Clause only protects minority interests. After hemming, she had to concede that there was no such case.

More detrimental to the pro-preference side was their inability to find any meaningful way to distinguish this case from countless other pieces of legislation that remove discretionary decisionmaking from one body of government to another. In other words, simply removing the authority for the Regents of the University of Michigan to adopt racial preferences — and placing such (lack of) such authority into the state constitution — is no different than the Fair Housing Act, which removes the authority for cities and states to make local housing policy.

Neither were the race-preference proponents able to pin down exactly when an equal protection violation would occur under their rationale. The Chief Justice along with Justices Kennedy and Alito, repeatedly tried to pin down at which step of removal the Clause is violated. If discretion is lodged with the University Regents, would the Clause be violated if the University President gained the discretion to adopt racial preferences? How about if it is the legislature? The governor? When and where does this violation occur? No logical answer was found for these questions.

As often occurs with highly contested issues, this case may come down to how Justice Kennedy votes. And he had questions for both sides. Justice Breyer, however, only questioned the pro-preferences side. Before the argument I would have predicted an 8-0 opinion (Justice Kagan recused herself) — I just don’t see how the Supreme Court can hold that the Equal Protection Clause is violated by guaranteeing equal protection. After the argument, I am still optimistic, but I will amend my prediction somewhat. It was clear that Justice Sotomayor will hold that Proposal 2 violates the Equal Protection Clause. Justice Ginsburg probably too, but she also had questions for both sides. Ultimately, I expect a 6-2 opinion, upholding the right of the people of Michigan to prohibit their government from considering race in governmental decisionmaking.

That’s the result I expect, and that is the result I hope for. Hopefully then other states can follow the lead of Michigan, California, Washington, Nebraska, Oklahoma, and Arizona, by prohibiting their governments from treating individuals differently because of the color of their skin.

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