While allowing Michigan to ban affirmative action, the Schuette majority has preserved the political process theory of Equal Protection, which requires judicial scrutiny when political majorities attack antidiscrimination policies and which invalidated legislative efforts to dismantle existing antidiscrimination and integration policies in the past. Concurring in Schuette, Justices Scalia and Thomas expressed their willingness to discard the political process doctrine altogether. Dissenting Justices Sotomayor and Ginsburg framed Michigan’s affirmative action ban as functionally similar to historical efforts by democratic majorities to repeal fair housing and school integration policies.
The Schuette plurality refuses to acknowledge similarities between the antidiscrimination and integration policies that were protected over three decades ago, on the one hand, and affirmative action in university admissions in Michigan in the 21st century, on the other hand. If the Court relied on the political process doctrine to invalidate the Michigan affirmative action ban, it would be implicitly acknowledging affirmative action’s family resemblance to antidiscrimination law. Such a move would destabilize the Court’s Equal Protection jurisprudence, which has spent an entire generation declaring race-conscious affirmative action to be itself discriminatory in most forms. Under this logic, banning affirmative action is an affirmation of antidiscrimination law, not an attack.
Six Justices still embrace the political process doctrine, but they disagree about what it prohibits. Justice Kennedy’s plurality is troubled by the suggestion that Equal Protection prevents democratic sovereigns from burdening minorities’ pursuit of policies that are primarily in their interest. Saying that a policy like affirmative action is primarily in the minorities’ interest can become racial stereotyping. After all, the Court has only permitted affirmative action to the extent that it’s narrowly tailored to achieve diversity, which benefits everyone. But if minorities don’t have a special interest in affirmative action, their burdens in pursuing it will be unproblematic, or at least no more problematic than everyone’s difficulties in changing the will of the democratic sovereign. Thus, Justice Kennedy concludes that the political process cases “were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” If the absence of affirmative action does not inflict injury by reason of race, the Michigan ban is consistent with the political process doctrine.
In her dissenting opinion, Justice Sotomayor argues that the Michigan ban especially burdens minorities by requiring them to amend the state constitution in order to pursue a policy that is in their interest. Everyone else can simply lobby a University board to pursue a university admissions policy in their interest, such as legacy admissions or preferences for athletes. But even Justice Sotomayor’s application of the political process theory to invalidate Michigan’s affirmative action ban would not lead to the conclusion that Equal Protection protects race-based affirmative action in public universities from the political process. Suppose that Michigan voters had passed a constitutional amendment requiring that university admissions be based solely on SAT scores. Now, everyone – not only minorities – would have to amend the constitution to pursue policies in their interest. Given the well-known black-white test score gap, this hypothetical SAT-only policy would produce a decline in black enrollment at public universities. But the political process theory of Equal Protection would not prohibit it. Under the approach embraced by Justice Sotomayor, a ban on affirmative action that banned other purported privileges simultaneously would be consistent with Equal Protection, even if it had the effect of reducing minority enrollment at elite universities.
The Schuette decision is a reminder of the battles that are not being waged. No litigant or Justice argued that the Equal Protection Clause requires public universities to achieve integration through race-conscious affirmative action. Such arguments are not made seriously in the United States. Yet, Justice Scalia is correct in observing that the political process doctrine, even in the limited formulation preserved by the plurality, “leaves ajar an effects-test escape hatch” that would permit an “equal protection violation where there is no discriminatory intent.” If Justice Kennedy’s plurality opinion unwittingly creates an escape hatch from the shackles of established Equal Protection precedents, Justice Sotomayor’s dissent demonstrates the jurisprudential gymnastics required to navigate one’s way through it. What is as necessary as it is implausible is a more straightforward reconsideration of the Court’s four decades of restricting affirmative action and disparate impact liability in the name of Equal Protection.