Voters can bar racial discrimination by their government, for now

The Supreme Court has upheld the constitutionality of a Michigan ballot initiative providing that the state, including state educational institutions, may not “discriminate against, or grant 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.”

It is shocking, but not surprising, that the constitutionality of such a proposition — which is at the heart of the Equal Protection Clause — would be controversial under that very clause of the Constitution. How can a requirement that every one be treated equally without regard to race be deemed a violation of the Equal Protection Clause?

There may be policy arguments in favor of discriminating against or granting preferable treatment to individuals based on race, etc. But it is absurd to deny the constitutionality of a democratically enacted prohibition against such discrimination and/or preferences.

Yet two Justices, Ginsburg and Sotomayor, voted to strike the Michigan initiative down. Justice Breyer joined the center-right majority as to the result. Justice Kagan did not participate, presumably because of her prior involvement in the litigation.

Thus, by a 2-1 vote, Justices nominated by Democratic presidents concluded that its unconstitutional for voters to insist that their state not treat people differently because of their race, sex, color, ethnicity, or national origin. And a majority of the U.S. Court of Appeals for the Sixth Circuit had reached that same odious result (two Republican nominees to the Sixth Circuit recused themselves).

Is anyone confident that Kagan would have evened the Supreme Court count at 2-2? I’m not. Is anyone confident that if a Democratic president appoints a successor to Breyer, he or she would vote as Breyer (an old white guy) did in this case? I’m not.

Is anyone confident that someday fairly soon it won’t be deemed unconstitutional for voters to prohibit their government from doling out benefits and opportunities based on race, sex, color, ethnicity, and national origin? I’m not.

I haven’t read the Supreme Court opinions yet. You can find them at the Volokh Conspiracy.

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