The opinion is divided. Justice Kennedy wrote the plurality joined by the Chief Justice and Justice Alito. They conclude in their opinion that there is no authority in the federal constitution or in the Court's precedents for courts to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions.Here's the opinion. I'm reading it and will have more soon.
ADDED: Schuette is the case Slate's Emily Bazelon called "The affirmative-action case liberals deserve to lose," which I translated to: "liberals should want to lose."
AND: The only dissenting opinion is from Justice Sotomayor, joined by Justice Ginsburg. This is a very long dissent, more than the combined length of the plurality and the 3 concurring opinions. America's history, we're told, is a "long and lamentable record of stymieing the right of racial minorities to participate in the political process," and this case is a "chapter" in that history: "A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities." In a footnote, Sotomayor assures us that "of course" she's not saying that "Michigan’s voters acted with anything like the invidious intent... of those who historically stymied the rights of racial minorities." The phrase "anything like the invidious intent" doesn't state a belief in the complete absence of invidious intent, only a big difference from the degree of invidiousness in the historical cases.
This footnote refers to the last footnote in Justice Scalia's concurring opinion, which says that it would be "doubly shameful to equate 'the majority' behind §26 with 'the majority' responsible for Jim Crow." The first aspect of shamefulness would be, in Scalia's words, for the Court to "stand in the way" of the people of Michigan as they amend their constitution to adopt a policy of color-blindness.
Scalia's opinion is joined by Justice Thomas, and the 2 of them argue for overruling the line of cases that have found Equal Protection violations in laws that make the political process more difficult for those who want the government to do more to protect the interests of racial minorities. The plurality, in minimalist fashion, preserves the old case law but finds it inapplicable to this change in the political process that makes it more difficult to get the government to adopt affirmative action policies.
ALSO: The plurality opinion (written by Justice Kennedy and joined by the Chief Justice and Justice Alito) does preserve the political process branch of Equal Protection doctrine, but it reins in some of the language and import of the Seattle School District case that the 6th Circuit had relied on. The Seattle case was about making it harder for local government to use busing to remedy de facto segregation (which was assumed to support race-based treatment of school children at the time). In the Seattle case, the Court talked about changing the political process for a remedy that "inures primarily to the benefit of the minority," and the plurality thinks that should be understood to refer only to changes that carry "the serious risk, if not purpose, of causing specific injuries on account of race."
To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling.Note that affirmative action in admissions is based on the government's interest in diversity, which is portrayed as benefiting all of the students, so — in that view — the loss of affirmative action isn't a specific injury to members of the minority group who won't gain admission if the policy is race-neutral. An affirmative action policy may be more generally in their interest, but that's not relevant to the way the policy process doctrine works now.
MORE: Chief Justice Roberts, in addition to joining the plurality opinion, also wrote a concurring opinion, and Justice Breyer wrote a concurring opinion. Justice Kagan recused herself.
Chief Justice Roberts's opinion is very short. It begins with a complaint about how long the dissent is: 11 pages of Sotomayor’s “own policy preferences” (topped off with a denial that her own policy preferences have anything to do with the legal question). But it goes on to something that I want to break out into a new post, which you can read here.