It’s been almost fifty years since Richard Nixon settled on his “Southern strategy” of mobilizing white voters alienated by civil-rights reforms. Almost the same amount of time has elapsed since the John Olin Foundation and other conservative groups set out to rein in the nation’s courts, and, in particular, the Supreme Court, which had played a key role in expanding the civil-rights agenda.
Both of these efforts reflected a broad-based backlash, overwhelmingly white, that Lyndon Johnson, Patrick Moynihan, and others foresaw quite clearly during the nineteen-sixties. Partly for demographic reasons, however, the political backlash eventually ran out of steam. After winning five elections out of six between 1968 and 1988, Nixon’s Republican party lost the popular vote in five out of the six subsequent elections, and it might well lose the next one, too. At the level of national politics, the old cry that whites are being treated unfairly seems to have lost some of its potency.
In some parts of the country, though, and especially in the realm of the law, the backlash is still thriving, and Tuesday was one of its best days yet. In the case of Schuette v. Coalition to Defend Affirmative Action, the Supreme Court, by a 6-2 vote, upheld a 2006 Michigan constitutional amendment that bans consideration of race in admissions to the state’s universities. But the majority decision, written by Justice Anthony Kennedy, went well beyond that. Without saying so explicitly, it appeared to give its approval to ballot initiatives designed to roll back affirmative action in other areas as well, such as hiring employees, awarding contracts—and ending racial segregation. In effect—and, in the case of the Court’s conservatives, surely in intention, too—the justices on the majority suggested that if voters in individual states want to throw out laws designed to counter America’s long history of racial discrimination, that’s fine by them, and perfectly constitutional.
Justice Kennedy wrote that the Michigan case, which had drawn conflicting rulings in the lower courts, was not about how to resolve the debate about racial discrimination and affirmative action but about “who may resolve it.” He went on: “There is no authority in the Constitution of the United States…for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
If you’ve been following the Supreme Court even casually over the past few decades, you might wonder how Kennedy justified this conclusion. Ever since Earl Warren’s day, the Court has been constructing constitutionally based arguments to prevent local elected officials, and the voters who usher them into office, from simply ignoring or repealing unpopular remedies for racial discrimination. In regard to the Michigan case, the key ruling came in the 1982 Washington v Seattle School District case, when the Burger Court overturned a local ballot measure that was designed to end busing black students to white schools—a policy that was even more unpopular than using race as a factor in determining college admissions.
The city of Seattle, like the state of Washington, argued that its voters had every right to end a policy—busing—that they didn’t like. Not so, said the Court. “We are also satisfied that the practical effect” of the ban on busing “is to work a reallocation of power,” Justice Harry Blackmun wrote. “The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decision making body, in such a way as to burden minority interests.” This action, Blackmun went on, violated the equal protection clause of the Fourteenth Amendment.
The argument that angry voters can’t simply take issues like busing and affirmative action out of the hands of local officials and governing bodies came to be known as the “political process” doctrine. It was this doctrine that the Sixth Circuit Court of Appeals, which covers Michigan, cited in its 2011 ruling that struck down the state’s constitutional amendment banning affirmative action in college admissions. And it was this doctrine that Justice Kennedy, in Wednesday’s ruling, drove an eighteen-wheeler over.
The appeals court, by an 8–7 majority, had ruled that the Michigan ballot initiative that produced the amendment, known as Proposal 2, was unconstitutional because it restructured the state’s political process and made it harder for racial minorities to press for change. Kennedy rejected this argument outright, saying that the ruling in the Washington v. Seattle case was too broadly drawn, and didn’t apply here.
“To the extent Seattle is read to require the Court to determine and declare which political policies serve the ‘interest’ of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle,” Kennedy wrote. “It has no support in precedent; and it raises serious constitutional concerns.”
And Kennedy didn’t stop there. Questioning the very basis of any affirmative-action program, he went on:
Why this would be so, Kennedy didn’t explain. Instead, he asserted that “freedom does not stop with individual rights.” The U.S. Constitution insured citizens the right “through the political process, [to] act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.” And if the voters decided, in their infinite wisdom, that “ever greater” freedom wouldn’t involve any affirmative action, well, “It is demeaning to the democratic process to presume that [they] are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
It was left to Justice Sotomayor, in a long and passionate dissent, to point out some of the practical implications of the majority ruling. She cited figures and charts showing how the proportion of minority students at public colleges in Michigan and California has declined sharply since the states’ assault on affirmative action began. “Between 2006 and 2011, the proportion of black freshmen among those enrolled at the University of Michigan declined from 7 percent to 5 percent, even though the proportion of black college-aged persons in Michigan increased from 16 to 19 percent,” Sotomayor wrote. And, evoking one of Justice Roberts’s famous lines from a previous affirmative-action case—he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—Sotomayor added,
As the Supreme Court is currently constituted, Sotomayor’s words, however eloquent, carry no weight. In the past ten months alone, the conservatives on the Court have gutted the Voting Rights Act, cast aside some of the few remaining limits on campaign donations, and sounded the death knell for affirmative action. Who knows, by the time they are finished, they might have figured out how to turn the calendar back to 1950, or even earlier.
Illustration by the Heads of State.
