Since then, “affirmative action” has become the ubiquitous semantic evasion. Last Tuesday, however, in her 58-page dissent that she summarized from the bench to emphasize her strenuous disapproval of the court’s ruling in a case from Michigan, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, entered the euphemism sweepstakes. She suggested adopting the phrase “race-sensitive admissions policies.” Not that Michiganders are apt to be mollified by such semantic ether designed to tranquilize them regarding practices they correctly consider discordant with American values.
In 2003, the Supreme Court upheld the use of race as one factor in evaluating applicants for admission to the University of Michigan’s law school. In response, three years later, 58 percent of Michigan voters amended their state’s Constitution to forbid discriminating against or giving “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.”
Michigan, like the seven other states (New Hampshire, Florida, Nebraska, Oklahoma, California, Arizona and Washington) that have similar bans on one remedy for supposedly inadequate diversity in enrollments, can continue to use other ways to rectify this.
Although the U.S. Constitution’s 14th Amendment says “No state shall ... deny to any person within its jurisdiction the equal protection of the laws,” the U.S. 6th Circuit Court of Appeals divided 8-7 in ruling that Michigan’s constitutional amendment mandating equal treatment violates the U.S. Constitution’s guarantee of equal protection. It reached this, shall we say, counterintuitive conclusion by reasoning as follows:
The amended state Constitution “restructures” the political process in a way that complicates the task of Michiganders who favor racial preferences. Rather than just persuade the administrators of Michigan’s institutions of post-secondary education to adopt racial preferences, they first must mount a statewide campaign to amend Michigan’s Constitution. If this reasoning is correct, the U.S. Constitution requires that states make it easy as possible for their governments to do what the 14th Amendment, if its plain language is properly construed, forbids.
Well, then: Does the U.S. Constitution’s First Amendment commit a similar sin by proscribing “establishment of religion,” thereby restructuring the political process to the discriminatory detriment of those who favor such establishment and cannot advance their preference without amending the Constitution?
In the controlling opinion, Justice Anthony Kennedy, joined by only John Roberts and Samuel Alito, stressed that this ruling did not concern the merits of racial preferences, which are permitted within certain judicially enunciated parameters. Rather, it concerned who should decide the merits. Last Tuesday, the court held that this decision must not be placed beyond the reach of electoral majorities.
Which is why Justice Stephen Breyer, who usually is a member of the liberal bloc, concurred in the court’s judgment. He was hoisted by his own progressivism. Because Breyer believes that democracy — the right of majorities to have their way — trumps most competing values most of the time, he is generally deferential to the preferences of legislatures, and, in this instance, deferred to the results of a popular referendum. Doing so, he remained consistent with a stance that generally serves the progressive agenda of reducing constitutional impediments to expansive government.
The moral of the story from Michigan is: What a tangled web we weave when first we practice to deceive ourselves into thinking we can gracefully ignore the great principle resoundingly affirmed in 1896 by Justice John Marshall Harlan’s dissent in the Plessy v. Ferguson decision. In this, the court held that government actions can take cognizance of race if the resulting treatment of racial groups is “separate but equal.” Justice Antonin Scalia, joined by Justice Clarence Thomas, concluded his concurrence in the court’s judgment about Michigan this way:
“As Justice Harlan observed over a century ago, ‘Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.’ The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”
The court’s continuing fissures regarding “race-sensitive” policies — six justices used four opinions to reach the result — indicate that Harlan’s principle remains too clear for the comfort of a court still too fond of euphemisms. That is shameful.
George Will is a columnist for The Washington Post.