Lyle Denniston of SCOTUSblog has a detailed discussion of today’s oral argument in Schuette v. Coalition to Defend Affirmative Action, the case challenging the constitutionality of Michigan’s Proposal 2, a state constitutional amendment banning the use of racial preferences in college admissions. As Denniston notes, the five conservative justices – including key swing voter Anthony Kennedy – seemed hostile to the case against Proposal 2. The interesting question is whether any of the liberal justices will join them. Stephen Breyer, who voted to strike down an affirmative action plan in Gratz v. Bollinger (2003) hinted in the oral argument that it’s possible he might end up voting with the conservatives on this one, though of course that’s far from clear.
Regardless, this was always going to be a difficult case for the pro-affirmative side. It’s one thing to argue that the Fourteenth Amendment permits affirmative action (and in some narrow situations, I think it does), and quite another to suggest that it bans states from abolishing it through their state constitutions. The argument for the latter proposition has numerous flaws. Among other things, as David Bernstein explains, it relies on the proposition (rejected by the Court in several previous affirmative action cases) that racial preferences in higher education are constitutionally permissible if their purpose is to benefit minority groups, rather than to promote educational “diversity” that – at least in theory – benefits everyone.
Proposal 2 is likely to be upheld. But this will not, of course, end the broader legal struggle over the constitutionality of affirmative action, which primarily focuses on the question of whether the Fourteenth Amendment categorically forbids the practice, rather than the narrower issue of whether states can repeal affirmative action policies through state constitutional amendments.