On Tuesday, the U.S. Supreme Court decided Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary, concluding 6-2 that a Michigan ballot initiative providing that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” The U.S. Court of Appeals for the Sixth Circuit, sitting en banc, had concluded that this amendment, as applied to public universities, violated the Equal Protection Clause of the Fourteenth Amendment.
Six justices voted to uphold the constitutionality of Michigan’s ballot initiative, albeit on different grounds. Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito, concluded that the Constitution does not preclude states from deciding whether to allow racial preferences through a ballot initiative. Justice Antonin Scalia, joined by Justice Clarence Thomas, went further, suggesting that the cases upon which the U.S. Court of Appeals for the Sixth Circuit had relied should be overruled. Justice Stephen Breyer joined the result, but only insofar as it applied to the use of racial preferences to increase diversity in educational institutions. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented. Justice Elena Kagan was recused.