You know what’s cool? Mob rule. Mob rule is the new hottness. Fuck state legislatures. Fuck the courts. Screw representative democracy. Just put your votes to the people, and if the people happen to decide that they do not really dig on the gays having rights or the blahs getting ahead in life, that’s totally cool, because the majority said so! At least that’s our takeaway from today’s Supreme Court decision, Schuette v. Coalition to Defend Affirmative Action, which upheld a Michigan voter referendum that banned any consideration of racial preferences in college admissions.
First, let’s lawsplain a little bit about how we got here. About a decade ago, when we still had Justice O’Connor on the court and therefore had a swing Justice who was a rational creature instead of a preening peacock like Justice Kennedy, the Court heard a case, Grutter v. Bollinger, about whether the University of Michigan law school — which is a baller top law school — could take race into account in its admissions and ensure a diverse student body. Every every everybody weighed in, mostly in favor of the University. Military leaders pointed out that diversity is critical in the officer corps to ensure effective command of a diverse enlistee military. Fortune 500 leaders said that maybe it would be nice if future business leaders were exposed to different perspectives and races so that they could be global thought leaders. And so on.
The 2003 court in Grutter held that the University of Michigan could keep using race as one factor out of many to decide whom to admit. This made some white people very very sad, so they whipped their fellow Michiganers into a frenzy and got a ballot initiative going that basically was one long WHITE PEOPLE 4 LYFE whine.
Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the state Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.
In 2012, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled by a vote of 8 to 7 that the initiative violated the federal Constitution’s equal protection clause. The appeals court majority said the problem with the law was that it restructured the state’s political process by making it harder for disfavored minorities to press for change.
It is not surprising that this made it all the way up to the Supremes, because Chief Justice John Roberts never met an affirmative action or desegregation law he didn’t want to dismantle. Let’s remember that when John Roberts was a wee baby lawyer in Reagan’s DOJ, he opposed reauthorization and expansion of the Voting Rights Act, because freedom.
So that’s how we got here today, for Schuette, and that’s why today sucks. The Court, with famewhore Justice Kennedy writing for the majority, held that as long as the voters want it, the voters get it, racist bullshit or no.
Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.
You guys, that is some black belt level smarm jujitsu. Sometimes the voters will behave themselves and not eviscerate useful, constitutional, and long-standing efforts to ensure a diverse enrollment population and workforce, and sometimes they will not! We’ll just have to roll the dice, because as long as you have the right to disagree about race, that is really what matters.
Did you hear that? That sound is the court getting ready to heave all the cases you think of as important civil rights landmarks — think Brown v Board of Education — out the window because to impose any sort of rules about how NOT to discriminate is the real discrimination. If this signals how this Court will rule on the inevitable gay marriage cases that will reach its shores, you should be afraid, very afraid, because the Court has basically just told the nation that if the majority votes for something, there’s just no way around it.
Your new majority-vote-fueled future is gonna be SO AWESOME America. Taste the freedom.