SCOTUS has ruled 6-2 (Kagan abstaining) that Michigan’s law against race-based affirmative action is constitutional.
In other words, it’s not racial discrimination to ban the sort of racial discrimination that is supposedly designed for the purpose of redressing racial discrimination.
Mind-boggling that the question even comes up. As Justice Scalia, joined by Thomas, wrote:
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law.
Justices Ginsburg and Sotomayor strongly disagree. Professor Jacobson writes at Legal Insurrection:
Here’s how Justice Sotomayor framed the issue: Taking away racially sensitive admissions uniquely harms those who benefit from that sensitivity…This is, as Kurt Schlichter calls it, essentially a ratchet theory, that no preference ever can be rolled back otherwise the rollback is discrimination.
I would add that Justices Sotomayor, Thomas, and Ginsburg all have personal experience with affirmative action, or lack thereof in Ginsburg’s case. Sotomayor and Thomas have acknowledged benefiting from affirmative action, although Thomas has indicated he felt it meant that people doubted his credentials for getting into law school. As for Ginsburg, who is older and went to law school before affirmative action existed, although her academic record was stellar she was discriminated against when she tried to get a job in law.
Thomas’ statements about his experience with affirmative action have been especially powerful:
When Thomas applied to Yale Law School, his race was taken into consideration. He wrote in his book, “I asked Yale to take that fact into account when I applied, not thinking that there might be anything wrong with doing so.”
But Thomas says that after he graduated from Yale, he went on several job interviews with “one high-priced lawyer” after another and the attorneys treated him dismissively. “Many asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated.”
The fact that he couldn’t get a job would shape his thoughts on affirmative action programs for years to come. Thomas wrote, “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated—and desperate.”
In his interview with ABC News, Thomas said he was unable, even when he was nominated to the Supreme Court, to erase the stigmatizing effects of racial preference. “Once it is assumed that everything you do achieve is because of your race, there is no way out.” he said. “…it is irrebuttable and it is proved to be true. In everything now that someone like me does, there’s a backwash into your whole life is because of race.”
I am certainly not suggesting a one-on-one relationship between any of these justices’ positions on affirmative action and their own experiences with it; their viewpoints are in line with their general liberal/conservative orientation. But I do find their experiences interesting. My own personal reaction to affirmative action, back when I was a liberal Democrat and it first came into play, was antipathy on the order of “two wrongs cannot make a right.”
[NOTE: In reading the article about Ruth Bader Ginsburg's life, this caught my eye:
She credits another professor at Cornell, Vladimir Nabokov, with influencing her reading habits and writing style. “He loved words … the sound of words. … Even when I write an opinion, I will often read a sentence aloud and [ask,] ‘Can I say this in fewer words—can I write it so the meaning will come across with greater clarity?’”.
I can’t say I ever saw a connection between Ginsburg’s prose and Nabokov’s. Nabokov was a wonderful stylist, but he was certainly not known for saying things in “fewer words.”
Having read Nabokov’s beautifully controlled and atmospheric memoir Speak, Memory, I recall that his father, whom he highly respected and loved, was a well-known law expert in Russia before the revolution (and I see looking here that his grandfather was involved with law as well, as Justice Minister during the reign of Alexander II).
I don’t have Vladimir Nabokov’s memoir in front of me right now so I can’t quote it. But I remember that, in the wonderful chapter devoted to his father, he praised his father’s ability to write clearly and succinctly in first draft and compared it favorably to his own meanders and convoluted crossings-out while in the act of composition.]