Challenge To Affirmative Action Ban Reveals Deep Divide At Supreme Court

 

Justice Anthony Kennedy
Justice Anthony Kennedy

On Tuesday, the court hit on a case in between those two cases: asking whether states can, through a constitutional amendment or otherwise, ban consideration of affirmative action policies in higher education.

In Tuesday’s argument, Mark Rosenbaum, an ACLU lawyer representing the plaintiffs challenging the amendment, argued that the case is about whether it is constitutional to pass a provision that “treats race different than all else” in removing race from the “ordinary political process,” a reference to Seattle and an earlier Supreme Court decision about housing laws.

Rosenbaum said that the Michigan amendment should be found unconstitutional because a student who wants consideration of race in admissions needs to go from the “ordinary political process” used by anyone else who wanted any other consideration — like being the child of an alumnus — to the “extraordinary” process of amending the Michigan Constitution again to allow racial consideration. He argued that this restructuring of the political process, similar to the anti-busing initiative struck down in Seattle, is unconstitutional.

Kennedy’s questions — throughout the arguments — suggested an ambivalence about the extremes pressed both by Scalia and Ginsburg. Instead, he appeared to be focused in finding whether a workable line could be drawn that would explain when such “restructuring” of the political process is unconstitutional.

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