Meanwhile, it’s telling, as Ilya notes, that Sotomayor never mentions Asian Americans. It’s well-established that affirmative action preferences in higher education make it more difficult for Asian-American applicants to win admission. By the dissent’s own reasoning, therefore, overturning the ban on preferences would be unconstitutional for harming a racial minority, i.e., Asians, to wit: “Everyone else can try to get a constitutional amendment passed via referendum in Michigan to ban certain factors that are harmful to them from being considered by admissions committee, such as legacy preferences or sports preferences. Only Asian Americans are prohibited from trying to get a constitutional amendment that will benefit them, i.e., one that bans consideration of race.” Had the dissent been the majority, the Supreme Court would have restructured Michigan’s political process to the disadvantage of Asian Americans, and thus, even in the absence of discriminatory intent, been unconstitutional decision under the (hypothetical) majority’s own theory! [Sotomayor: “The problem with §26 is that §26 reconfigured the political process in Michigan such that it is now more difficult for racial minorities, and racial minorities alone, to achieve legislation in their interest."]
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