A few more notes on the Michigan higher education racial-preferences case already covered in this space by Roger and Ilya:

Justice Scalia could hardly have set the rhetorical stage more vividly: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” Some readers will be let down to discover on proceeding further that the case doesn’t actually turn on that question: all eight participating Justices agree at least formally that the issue this time was not whether Michigan voters could end racial preferences at all, but instead whether they chose a method of doing so (constitutional amendment, in this case) that itself survives Equal Protection scrutiny.  

A technicality? To me, it made the case far more interesting. So many big cases have tackled the constitutionality of racial preferences as a matter of substance that anyone who cares has had ample opportunity to reflect on those big questions. By contrast, there’s been far less attention to the Hunter/Seattle “political process” line of Equal Protection cases, by which the Court occasionally and selectively intervenes to strike down democratic processes as unfair after they arrive at the “wrong” policy conclusions. (Hunter v. Erickson (1969) and Washington v. Seattle (1982) descended from Reitman v. Mulkey (1967), in which the Warren Court decided 5-4 that California voters had no right to enshrine freedom of association in their state constitution as a way of heading off then-new “fair-housing” enactments.)

Scalia and Thomas regard this line of cases (and I agree) as unprincipled, un-administrable, and lacking in any particular stopping point: the “radical logic” of Hunter and Seattle (to quote the syllabus) would lead toward general judicial review of any and all government action on the basis of whether it has “disparate impact” on minority residents, no matter how unintended. The two Justices are accordingly ready to overrule this bad line of cases directly as a mistake of its era; the plurality, for better or worse, are not (yet) willing to do so, and instead recharacterize the cases’  facts to limit their reach in ways that neither Scalia nor Sotomayor find logically defensible.

Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best – how shall we say? – imprecise. All the Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders the word race itself in a way convenient to her purposes, using it to include Hispanics (who, as official forms remind us, “can be of any race,”) while breathing not one word about Asian-Americans (a more widely racially classified group whose situation of being both historically disadvantaged and discriminated against in university admissions cries out for recognition).

“Race matters,” indeed. 

[adapted from Overlawyered]