In a 6 to 2 decision, the Supreme Court has determined that the Michigan ban on affirmative action in college admissions is constitutional, reversing a decision against the ban by a federal appeals court.
Justice Kennedy penned the plurality opinion for the court, joined by Justices Alito and Chief Justice Roberts, arguing that neither the Constitution nor previous court precedent gives the courts the authority to overturn a voter-approved prohibition on race-conscious admissions policies. Justices Breyer, Scalia, and Thomas filed concurring opinions, while Sotomayor wrote the dissenting opinion. Justice Ginsburg joined in the dissent, while Justice Kagan was recused from the case and did not vote.
"It is important to note what this case is not about," Kennedy wrote in his opinion. "It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education." The Coalition to Defend Affirmative Action had challenged the state ban on constitutional grounds, arguing that the voter ban violated the equal protection clause of the Fourteenth Amendment. Kennedy wrote in response that "freedom does not stop with individual rights," adding:
It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a pub- lic campaign there will be those, on both sides, who seek to use racial division and discord to their own political ad- vantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
Justice Sotomayor read from her dissent at the bench today. She wrote:
Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.
Read the full opinion below. The case is Schuette v. Coalition to Defend Affirmative Action.