“If you are tired of Court watchers who like to hedge their bets, you might appreciate this: I predict a reversal in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary. It seems unlikely that the Court granted certiorari in order to congratulate the Sixth Circuit on its keen legal insight. But I can’t help wondering why Supreme Court intervention has been necessary. How did the Sixth Circuit, sitting en banc, arrive at the profoundly counter-intuitive conclusion it did? And what does it say about our legal culture that the 8-7 vote broke down precisely on party lines?1
The case concerns the Michigan Civil Rights Initiative (“MCRI”)—a voter initiative passed in 2006 by a wide margin. Its core provision prohibits the state from “discriminat[ing] against, or grant[ing] 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.” In other words, it enshrines in the Michigan Constitution the principle that the state should not engage in (among other things) race discrimination. For exactly that reason, the Sixth Circuit found it unconstitutional.”
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