Following up on a question from Chief Justice John Roberts, Kennedy asked whether it would be constitutional if the faculty at a school voted for an affirmative action policy and then the Board of Regents took the power away from the faculty a few years later. Rosenbaum said that would be allowed. Kennedy then asked if the legislature could take the power away from the regents, which Rosenbaum said would be fine if “part of the ordinary process.”
As he continued moving up the line to the amendment process, which Rosenbaum argues is unconstitutional, Kennedy, slightly exasperated, asked, “At what point is it that your objection takes force? I just don’t understand — I just don’t understand.”
Rosenbaum didn’t give a Kennedy a bright line, instead telling him that “the problem that the restructuring process gets at … [is that] the political process itself not become outcome determinative,” leaving it to Kennedy and the other justices to decide whether such a line can be drawn.
Scalia — who has made his opposition to all racial preferences clear and, as such, would not have any issue with a state banning such preferences — served as the key defender of the Michigan amendment, telling Rosenbaum that under the ACLU’s argument “the 14th Amendment is a racial classification.”