The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Flashback: The Supreme Court Turns Back the Parade of Horribles

Cases like Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (2014) show how important it is appoint good judges to the federal courts.


Today is the fourth anniversary of the Supreme Court's decision in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (2014). My mind still reels at the notion that it took the Supreme Court's intervention to get the right result here. If anything illustrates the importance of getting good judges nominated and confirmed to the federal bench, this case does.

The case involved the constitutionality of the Michigan Civil Rights Initiative ("MCRI")—a voter initiative passed in 2006 by a margin of 58% to 42%. Its core provision prohibits the state from "discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In other words, it enshrines in the Michigan Constitution the principle that the state should not engage in (among other things) race discrimination. For exactly that reason, the Sixth Circuit, sitting en banc, had found it unconstitutional in an 8-7 vote that broke down precisely on party lines. (The one Bush appointee who voted against MCRI's constitutionality was initially a Clinton appointment and cousin-in-law to Senator Carl Levin (D-Mich)).

MCRI had passed in the wake of Grutter v. Bollinger, which had held in a 5-4 decision that the Constitution does not forbid the University of Michigan Law School from granting under-represented minorities large admissions preferences over whites and Asians. Michigan voters decided that if the Constitution did not forbid race-preferential admissions, they would. There is nothing remarkable about that. The fact that the Constitution does not forbid something does not mean it is required. Perhaps that should be especially so in the case where four Supreme Court Justices took the position that the Constitution did indeed forbid what UM Law School was doing.

The named plaintiff-respondent in the case was the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (self-described as "BAMN")—an organization whose very name bespeaks its extremism. BAMN is a Detroit-based offshoot of the Revolutionary Workers League, and is, to put it as blandly as possible, controversial.

Just one among dozens of examples of its willingness to use "any means necessary" was its attempt to intimidate the Michigan Board of Canvassers into refusing to certify MCRI for the ballot. BAMN brought in busloads of protesters who shouted down officials, jumped on chairs, and stomped their feet, flipping over a table in the process. As the director of elections put it, "Never before have I seen such absolutely incredible and unprofessional behavior from lawyers urging this disruption."

BAMN's pre-election tactics failed. Board members voters to certify the initiative for the ballot as the law required them to do. The following November, the voters approved it. BAMN and many others then filed suit.

The core of their legal argument (which had already been rejected by the 9th Circuit and the California Supreme Court) was this: By adopting a policy against race discrimination in the state constitution, Michigan is discriminating against racial minorities who might wish to lobby for preferential treatment. Other interest groups—veterans, public employees, etc.—can lobby for special treatment without restraint. But a racial group can do so effectively only if it first successfully lobbies to repeal the state constitutional provision. Such a "political restructuring" is unconstitutional—or so BAMN's argument ran.

But as I wrote back before the Supreme Court's Schuette decision in The Parade of Horribles Lives, MCRI doesn't discriminate against racial minorities. It discriminates against race discrimination—the way the strict scrutiny doctrine discriminates against race discrimination. Members of racial minorities are as free as anyone to lobby for preferential treatment. They just can't lobby for it on the basis of their race, sex, etc. Nor can they be disadvantaged on those bases. MCRI is a two-way street.

Moreover, all laws work a political re-structuring. Consider the Equal Credit Opportunity Act of 1974. Under its provisions, it is illegal to discriminate by race in the provision of credit. When Congress passed that law, it effectively pre-empted the Michigan Legislature from passing legislation that might require banks to give minority members credit at preferential rates. But if that makes it unconstitutional, I'll eat my hat.

The best case BAMN could cite for its position was Washington v. Seattle School District No. 1 (1982), a 5-4 decision that was a logical mess. I'll spare you a long description. Suffice it to say that the one thing all nine Justices in Washington agreed on was that the argument being made by BAMN years later would been absurd. Justice Lewis Powell's dissent in Washington had expressed fear that the majority opinion's logic could indeed lead to that result: "[I]f the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene .…" But the majority vehemently denied Powell's assertion and made it clear that their intent was not to cover laws like MCRI: "The statements evidence a basic misunderstanding of our decision …. It is evident … that the horribles paraded by the dissent … are entirely unrelated to this case."

Ultimately, MCRI was upheld by the Supreme Court, thus heading off the "parade of horribles," but with Ginsburg and Sotomayor dissenting. But the Sixth Circuit decision (as well as the Supreme Court dissents) are a reminder not to take anything for granted.