Schuette v. BAMN is an opinion that will have a lasting legacy, requiring ongoing interpretation and contestation for decades to come. Or, if there is any justice in this world, it will wither away, an untended branch of Justice Kennedy’s increasingly esoteric and unprincipled jurisprudence.
Here’s hoping it’s the latter—that Schuette is seen not only as an abomination, but an aberration.
But, assuming it is the former, I am going to make an initial foray into understanding, explaining, and critiquing the Schuette opinion.
The Danger of Obscurity
At the outset, the whole of Kennedy’s opinion is, in familiar fashion, opaque, vague, undisciplined and extremely difficult to follow.
In other contexts, numerous scholars, most notably Cass Sunstein, have advanced cogent arguments for the virtue of doctrinal obscurity, or “leaving things undecided.” But Justice Kennedy’s opinion in Schuette is a surely an object lesson in the dangers of such a jurisprudential approach.
Indeed, for a while now I have been thinking that Justice Kennedy is no friend of equal protection. Because while you might like the outcome of some of his decisions (e.g., Lawrence v. Texas, Romer v. Evans, and United States v. Windsor), the method by which Kennedy reaches these outcomes is so undisciplined and open to manipulation that it actually jeopardizes equality more than it protects it.
The dangers of Justice Kennedy’s haphazard approach to equal protection have been fully realized in Schuette. If you ever wondered whether Kennedy could use his trademark opacity to cloak a more disturbing agenda, your proof is here.
Factual Background of the Case
The State of Michigan has been a key actor in the political and legal debate over race-conscious admissions policies in higher education. Specifically, in 2003, the Supreme Court affirmed the constitutionality of just such a policy employed by the University of Michigan Law School. See Grutter v. Bollinger. The law school’s policy examined race as just one factor in a holistic and individualized consideration of applicants to the school. The Court held that such policies met the heavy burden of strict scrutiny review and were constitutional.
Partly in response to Grutter, voters in the State of Michigan placed Proposal 2 on the ballot. Proposal 2 aimed to amend the state constitution to forbid any state actor, including state educational institutions, 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.” The measure was approved by some 58% of voters, although black voters disapproved of the measure by a margin of 9 to 1.
As a result of the passage of Proposal 2, Section 26 was added to the state constitution and state-run institutions of higher education, including the University of Michigan, were prohibited from considering race in any manner in connection with admissions. Organizations in favor of maintaining race-conscious policies to support diversity in higher education challenged the law as a violation of equal protection.
The Essential Steps in Kennedy’s Reasoning, to the Extent I Can Discern Them
Even in Kennedy’s vast pantheon of murkiness, Schuette stands apart as particularly difficult to map in terms of its reasoning. Following is my best effort.
Rational Basis Review Applies to Section 26
Kennedy never comes out and says this, but then again, he has a habit of failing to identify the applicable level of equal protection scrutiny. Kennedy’s evasion of the tiers-of-scrutiny framework may seem “flexible” and “forward thinking” when the result is an expansion of rights, as in Lawrence, Romer and Windsor. But it takes on an entirely different character in the context of Schuette.
Recall that the doctrine of strict scrutiny was adopted specifically to force careful consideration of laws implicating race. Thus, Kennedy’s refusal to apply strict scrutiny to a law explicitly implicating race amounts to abandoning the key judicial mechanism for addressing race discrimination in our country.
This move is all the more stunning in light of Kennedy’s opinion just last term in Fisher v. University of Texas at Austin. There, the challenged policy used the term “race” in a manner very similar to Section 26, in that the term “race” was a facial consideration in the University’s admissions policy, but it did not explicitly operate to advantage one race over another. Indeed, it was never established that the plaintiff, Abigail Fisher, was denied admission “on account of” her race. Nonetheless, because the policy facially relied on race as a category, the Court subjected it to strict scrutiny—the level of judicial scrutiny reserved for race classifications.
Yet here, where Section 26 also facially relied on a race classification, which did not operate explicitly to advantage one race over another, the Court declined to apply that rigorous and protective level of scrutiny.
Apparently, laws enacting race-conscious policies are subject to strict scrutiny, while laws permanently forbidding the adoption of race-conscious policies are subject only to deferential rational basis review. This eerily echoes Reva Siegel’s thesis in her 2013 article, Equality Divided: That equal protection jurisprudence has evolved to be more protective of the interest of racial majorities than racial minorities.
How to explain this conclusion? Justice Kennedy, the parties (from my quick perusal of the briefs), and the courts below made the application of strict scrutiny in this case dependent on the “political process” doctrine. And on that point, Justice Kennedy concluded . . . .
The “Political Process” Doctrine is No Longer Applicable, Because Racism is Over
Rather than applying broad equal protection principles to Section 26, Kennedy instead narrowed his focus to whether the lower court, the Sixth Circuit Court of Appeals, had properly interpreted precedent; concluded that the Court of Appeals had failed to do so; and more or less reversed the Court of Appeals decision on that basis, without considering the larger equal protection implications of the issue.
In brief, the case relied upon by the Court of Appeals, Washington v. Seattle School Dist. No. 1, held that laws making it more difficult for racial minorities to defend their interests through the political process violated equal protection. This is the so-called “political process” doctrine.
Justice Kennedy was careful to read Seattle (a case from 1982) and its predecessors (cases from the late 1960s) against the backdrop of the surrounding “circumstances” of the time, which he characterized as presenting “widespread racial discrimination.”
Against the backdrop of blatant racial discrimination, one could identify certain political interests as being held primarily by racial minorities, and could identify when majorities sought to alter the political process so as to thwart pursuit of those interests. Thus, Kennedy determined that “Seattle is best understood as a case in which the state action in question . . . had the serious risk, if not purpose, of causing specific injuries on account of race . . . .” In other words, the state actors in Seattle were out to harm the interests of racial minorities. And this risk or purpose was absent in Schuette.
Kennedy determined that the “circumstances” (always referred to with that vague term, but presumably referring to the “widespread racial discrimination” Kennedy conceded was present in the earlier cases) were not present in Schuette.
That is, while Kennedy found it easy to believe that racial minorities had an interest in laws that promoted racial justice way back in the 60s, 70s and 80s, when racial discrimination was “widespread,” he could not imagine that racial minorities today possess a similar unity of interests.
If you find this reasoning hard to follow, you are not alone. Essentially, Justice Kennedy is requiring a unified set of political interests on the part of racial minorities as a prerequisite for application of strict scrutiny.
Kennedy went further to claim that any assertion that racial minorities have an interest in certain policies, like race-conscious admissions policies, necessarily relied on “demeaning” racial stereotypes.
Thus, Kennedy proposes, judicial inquiry into the purported “interests” of any given racial group is itself race discrimination that would be subject to strict scrutiny.
You heard right. Kennedy contends that when the Court inquires into issues of racial justice, the Court itself risks running afoul of the Equal Protection Clause.
Further, such an inquiry would tend to stir “racial antagonisms and conflict.” Apparently the only way to avid this is to stop talking about race and race justice altogether.
The Absence of Injury
In connection with the above reasoning, Kennedy also concluded that prohibiting consideration of race-conscious policies does not inflict a “specific injury” in the way that the laws at issue in Seattle and related cases did.
And yet we have seen over and over again that when institutions of higher learning do not pay attention to race in admissions, members of racial minorities start disappearing from campus. In other words, members of racial minorities lose the opportunity to pursue higher education, which must surely be considered a specific harm of the highest magnitude in our society, which sees education as a prerequisite to economic, social and political participation.
Voters Cannot Violate Equal Protection
Again, while he never says so explicitly, Justice Kennedy seems to imply that direct action by voters should be considered differently than other forms of state action. Indeed, throughout the opinion Kennedy repeatedly emphasizes that Section 26 was adopted through a deliberative, democratic process, as if this somehow validates the outcomes of that process.
However, as is apparent from the challenges to Colorado’s Amendment 2 in Romer and California’s Proposition 8 in Perry, the fact that state action is initiated by the voters does not change the fact that it is state action, and does not relieve that state action from the protections imposed by the Constitution.
Further, as Justice Sotomayor beautifully reminded us in her dissent to Schuette, the very purpose of the Equal Protection Clause is to place a check on majoritarian politics, as they always pose the risk of subordinating minorities while providing no means of correction. Justice Kennedy’s fixation on the democratic process is therefore puzzling in the equal protection context.
What Exactly is Wrong with Schuette?
Or, more precisely: What is not wrong about it? Because really, everything seems wrong about this opinion.
First, on the level of outcome, you have a plurality of the Court concluding that it is entirely acceptable for a majority to vote to take discussion of race equality off the table—likely permanently, given the difficulty of amending constitutions.
Second, on the level of doctrine, you have the Court applying strict scrutiny in Fisher, a case involving a white plaintiff with a barely colorable claim that she had been discriminated against “on account of race,” but then failing to apply strict scrutiny in a case where a (predominately white) majority has erected a near-permanent barrier to pursuit of greater equality for minorities.
Third, also on the level of doctrine, it is stunning that Justice Kennedy sees fit not to cite his own decision in Romer v. Evans or his pet doctrine of unconstitutional animus. With regard to Romer, the factual similarities between that case and Schuette would be obvious to any first-year law student. And with regard to the doctrine of animus, Kennedy goes to great lengths to vary his vocabulary, describing the “invidious” and “hostile” discrimination on the basis of race that occurred before—that is, before we became enlightened and post-racial/racist. But he is careful to avoid even using the word animus lest he have to account for his failure to address the doctrine in this case. This is a case that cries out for an animus analysis.
Finally, on the level of policy, you have the Court yet again advancing an unsupported and highly contestable claim about social reality—namely, that we live in a post-racial, post-racist society.
Justice Kennedy emphasized that the question was not whether affirmative action was a good or bad thing, but who gets to decide.
So when it comes to claiming that racism is over, who gets to decide that issue? Is it really a matter to be left up to the racial majority?