Yesterday, the Court heard oral arguments in Schuette v. Coalition to Defend Affirmative Action. The case involves a decision by the 6th Circuit Court of Appeals to strike down a Michigan constitutional amendment banning the use of racial preferences in higher education. The oral argument did nothing to dispel the nearly universal assumption of court-watchers that the decision will be reversed, although the argument against the amendment has a stronger basis in precedent than it's sometimes been given credit for.
Like Slate's Emily Bazelon, I was skeptical of the 6th Circuit ruling. I very strongly believe that most affirmative-action programs do not violate the Constitution. But arguing that Michigan is constitutionally required to use affirmative-action programs already in place would obviously not be right.
The constitutional question is more complex than that, however. There are circumstances in which it is unconstitutional for a state to use a constitutional amendment to foreclose statutory protections the state and/or its subdivisions are not required to grant. In Romer v. Evans, for example, the Supreme Court struck down a Colorado constitutional amendment that prevented any state entity from granting protections on the basis of sexual orientation. This opinion, however, was based on a finding that the Colorado amendment was based on animus, and was therefore irrational. There was no factual showing in this case that the amendment was based on animus, and consequently the 6th Circuit majority didn't cite Romer.
The most recent precedent that is relevant is the 1976 case Washington v. Seattle Sch. Dist. No. 1. In that case, the Court found that a Washington state initiative that banned the use of busing for racial integration violated the Equal Protection Clause of the 14th Amendment. The anti-busing initiative, Justice Blackmun's majority opinion argued, "use[d] the racial nature of an issue to define the governmental decisionmaking structure, and thus impose[d] substantial and unique burdens on racial minorities." This logic is based on the sound principle that the 14th Amendment forbids majorities from manipulating the political process to make it more difficult for minorities to achieve political gains. The 6th Circuit held that the Michigan constitutional amendment "mirrors" Seattle. Justice Sotomayor repeated this claim at oral argument, asking the representative of the state of Michigan "[w]hy isn't this identical to Seattle?"
The question, then, is whether a ban on the use of racial preferences is comparable on a ban on the use of busing for racial integration. It is a close question, especially since as Justice Sotomayor observed the percentage of racial minorities on the University of Michigan campus has declined substantially since the ban on affirmative action passed. John Bursch, arguing on behalf of Michigan, argued that this decline was not evidence of a "unique burden" because there were race-neutral measures (such as eliminating legacy preferences) that could address the racial disparity in admissions created by the amendment. This response has another side to it, though—the fact that the initiative targeted only racial preferences and not legacy or geographic preferences adds credence to the argument that it constitutes a unique burden on racial minorities.
In terms of how the Court will rule, whether Seattle is applicable to this case or not is a moot point. Seattle was a 5-4 decision by a Court that was substantially more liberal on civil rights than the Roberts Court, and that decision would have not come out the same way today. If the Roberts Court was given the choice between applying Seattle and striking down the Michigan initiative and simply overruling it, it would surely do the latter. The most likely outcome is a minimalist decision that overrules the 6th Circuit and upholds the ban on affirmative action without overruling any previous precedents.
I would not find that outcome especially objectionable. I do wish, however, that the conservatives on the Roberts Court would show similar deference when states used affirmative-action programs to address racial inequities that remain a stubborn reality of American society.