The Sixth Circuit’s embarrassing decision

November 16, 2012 | By JOSHUA THOMPSON

As we reported on Thursday, the Sixth Circuit declared Michigan’s Proposal 2 unconstitutional under the Equal Protection Clause.  The decision has been roundly condemned throughout the legal community.  For good reason.  The decision defies both logic and common sense by holding that Proposal 2 — a state constitutional amendment prohibiting Michigan government from treating individuals differently with respect to race — violates the guarantee for “equal protection” in the Fourteenth Amendment to the United States Constitution.  If that doesn’t make sense to you, then you understand the ruling perfectly.

The decision rests solely on the Sixth Circuit’s interpretation of two Supreme Court cases that are 43 and 30 years old.  A 1969 case, Hunter v. Erickson, held that Akron’s repeal of an anti-discrimination law (and the requirement that any future anti-discrimination measure be voted on by the electorate) violated the Equal Protection Clause.   In a 1982 case, Washington v. Seattle School District No. 1, the Supreme Court declared that Washington’s attempt to prohibit race-based busing violated the Equal Protection Clause.  These two cases comprise the Court’s “political structure” line of cases and have never been used to invalidate another race-related statute, amendment, regulation, or ordinance since.  In fact, a case decided the same day as SeattleCrawford v. Los Angeles Board of Education — with basically the same facts (the electorate passing an ordinance prohibiting race-based busing), was held constitutional by the Supreme Court.

If anything respectable can be said about the Sixth Circuit’s reasoning in this case, it is that it represents a plausible, albeit extreme, extension of the Supreme Court’s decisions in Hunter and Seattle.  However, shouldn’t the Sixth Circuit have taken a step back — like the Ninth Circuit did when ruling on Proposition 209 — and realized the absurdity of holding a constitutional amendment guaranteeing equal protection a violation of equal protection?  Here’s what the Ninth Circuit said when an identical Hunter/Seattle argument was brought before it:

“The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

It is a very important, non-trivial point.  Race-based affirmative action programs are barely countenanced under the Constitution’s Equal Protection Clause.  The Sixth Circuit turned that truth on its head, and held that race-based affirmative action programs are required under the Equal Protection Clause.  By focusing all of its reasoning power into Hunter and Seattle, the circuit court clearly lost sight of the forest for the trees.

There were 5 dissents filed in the en banc decision.  Most of the dissents pick apart the Sixth Circuit’s reasoning with respect to Hunter and Seattle.  And, let me be clear, I only said that the Sixth Circuit’s reasoning was a “plausible, albeit extreme” interpretation of those cases.  The dissents’ points are certainly valid, and should have been used by the majority to distinguish the present case from Hunter and Seattle.  [Or else it finds itself in the ridiculous predicament of striking down a guarantee of equal protection as a violation of equal protection.]  Regardless, my favorite dissent was filed by Judge Rodgers, who wrote only four sentences:

Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level. That alone can hardly render the no-race-preference act unconstitutional. Whatever Hunter and Seattle hold, the Supreme Court cannot have intended such a ban.

That’s absolutely true.  One could also say that whatever Hunter and Seattle hold — thirty years after either has been applied to a race-related law — they cannot be used to strike down a state’s guarantee of equal treatment.

Defenders of equality under the law, however, may end up being thankful for this decision.  As Eugene Volokh noted, the case is surely on its way to the Supreme Court.  There we can expect that the Supreme Court will put the final nail in this ridiculous interpretation of Hunter/SeattleWith states around the country continuing to follow California and Michigan’s lead by prohibiting race-based governmental decision making, without some clarity in the law, such ridiculous challenges would surely spring up elsewhere.  It’s that hope that leaves me somewhat relieved by the Sixth Circuit’s ridiculous decision.  Over at Minding the Campus, PLF friend Roger Clegg has similar hope.  In his post, titled “An Unusually Stupid Court Ruling,” he writes:

But, on reflection, we can make lemonade from this lemon.

The state attorney general has already announced that he plans to take the case to the Supreme Court – thank goodness – which will almost certainly grant review, because the decision below is not only important and outrageous, but also creates a split in the circuits since the Ninth Circuit rejected a similar lawsuit.  When the Court does so, there ought to be at least five votes to overturn the Sixth Circuit’s decision – and clarify or overturn a confusing and mischievous couple of earlier Supreme Court decisions that the Sixth Circuit used to justify its result.  So the case will provide the Court with an opportunity to replace bad precedent containing dubious language with good precedent and good language for future cases.

I share his optimism.