April 22, 2014

The Supreme Court decides Schuette, the affirmative action case about Michigan's state constitutional law ban on affirmative action.

Unsurprisingly, the Court reversed the 6th Circuit, which had found a federal constitutional violation in amending the state constitution to forbid affirmative action. But the breakdown of the opinions is important. SCOTUSblog summarizes:
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.

52 comments:

HG said...

I may be dim on this subject but it is still incomprehensible to me that affirmative action , in any form , is constitutional

Beorn said...

I have always been suspect of the need to fight institutional racism, with more institutional racism.

BDNYC said...

Scalia: It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?

Exactly.

BDNYC said...

The only thing that surprises me is that 2 Justices and enough judges on the Sixth Circuit felt otherwise.

SomeoneHasToSayIt said...


The 'minority' justices in this opinion, like most folks who favor affirmative action and other remedies to disparate impact, simply have a fatal , anti-science blind spot.

They essentially think that it is simply not possible that race genetics can have a role, let alone possibly a dispositive role, in explaining much of the cause of outcome disparities.

Though it is trivially obvious that race genetics can and does lead to inter-race differences in things like skin color, hair color and style, relative susceptibility to certain diseases, average height, and many other things, they believe that it is simply not possible that average IQ can also have race-based Darwinian norms.

And so anywhere and everywhere they see disparate impact, for outcomes that could be explained by mean-IQ differences, they dismiss that possibility out of hand, and go right to prejudice and discrimination, and then fashion legal 'remedy' that unsurprisingly, often makes the situation worse.

It is anti-science flat out, and is a blind spot that should be a disqualifier when found in those who would judge and compel the rest of us.

mccullough said...

Justice Breyer's concurrence is interesting. He thinks because the referendum only overturned an administrative policy, not a legislative one, then it's not unconstitutional. An interesting way to draw the line.

As applied to the undergraduate admissions process at the University of Michigan, I don't see how the referendum would be unconstitutional at all. It's just a prophylactic measure to prevent unconstitutional actions by a school that violated the Constituion in its admissions practices.

Jane the Actuary said...

Too bad this decision didn't come last week when I was in the Detroit area, to see the local reporting!

But instead there was a girl who was at the center of/a pawn in a protest demanding that she be an affirmative-action admit. And it ultimately speaks ill of our top universities, that they're viewed as a lottery ticket into a good job, rather than as a place for rigorous learning for the most qualified.

paul a'barge said...

This is a very long dissent, more than the combined length of the plurality and the 3 concurring opinions

Note the gender. Classic. You just can't make this stuff up.

Drago said...

Language/terms/definitions mean whatever the left requires those terms to mean regardless of previous meanings and usage.

To even make note of that fact exposes one as a racist....and counter revolutionary.

gspencer said...

"Justice Kagan recused herself."

But you can bet the proverbial bottom dollar that she woulda gone along with Clotho and Lachesis and played the role of Atropos.

Jay said...

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,"

So attending the University of Michigan is political, then?

I see no reason to read the wise Latina's silly blather. It was destroyed by Scalia anyway...

David said...

The next liberal majority will barely chew this soft pudding of a precedent before spitting it on the floor.

$9,000,000,000 Write Off said...

"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."

Well, except for Asians, Southeast Asians, Semites, Indians, and other racial minorities that were harmed by Affirmative Action. They are definitely advantaged.

BigFire said...

re: Jane the Actuary

Jane, according to the You didn't build that crowd, YOU DID NOT build that. You don't have the ability to do anything on your own. Only the STATE have the right to give you what you own. So it's only right for the affirmative action for someone to get what they got.

Brando said...

The problem with the pro-AA side is that there's just no coherence to it. You either think people should be judged by their race, or you don't--and those of us raised at a time where the conventional wisdom has been that race should not be used to judge a person simply can't buy the argument that it is ever okay to do so.

"Racial diversity" as a goal is obviously a sham--which is why we're not trying to limit the percentage of black players on sport teams to 10%, or do the same with Howard University, or limit the percentage of female students in universities to their proportion in the general population.

"Correcting past injustices" or "removing obstacles" on the other hand are laudable goals--what pro-meritocracy person today wouldn't want to see that minorities can get a fair shake? But racial preferences simply don't do that, and in fact tend to do long term harm to their supposed beneficiaries by setting them up to fail and creating an implicit "asterisk" beside their accomplishments.

And as the Court is dealing with these days, there's the Constitutional problem--that pesky 14th Amendment, which makes it about as plain as can be that government cannot deprive a person of equal protection under the law based on their race--full stop. Want to make an exception so you can hand out racial preferences and have a few nonwhite (and nonAsian) faces on your college brochure? Then amend the Constitution.

Sotomayor can try any sort of legal acrobatics to get around this, but she's failing her duty as a jurist.

Curious George said...

Let's just it a tax and all move on, shall we?

hawkeyedjb said...

Sotomayor, hired for her politics and her reliability, inserts her policy preferences in place of law or the constitution. Well, duh. There are a lot of political hacks. They are entitled to a little representation, aren't they? We can't have all Brandeises and Cardozos and Frankfurters.

Chuck said...

What's with all of the charts and graphs from SCOTUS liberals these days?

Breyer's dissent in McCutcheon v. FEC had a couple of pages of charts; and Sotomayor's dissent in Schuette v. "By Any Means Necessary"* has all kinds of completely unremarkable and not very elucidating charts.

It's like the liberals on the Court are writing Time magazine articles.

Don't you love that name for a Supreme Court caption? "By Any Means Necessary"? That's been their name, and their method, for several years here in the Great Lakes State.

Chuck said...

Jennifer Gratz was going to run for the U-M Board of Regents if this turned out the other way; at least I think so.

I'd still like to see her run.

Real American said...

When you get down to it, it seems that BAMN's basic argument was that it has the right to win elections and legislative battles, which is deeply unconstitutional. It could fairly be argued under their logic that blacks, as a political group, cannot be on the losing side in any public debate or legislation (maybe Al Sharpton gets to decide when that is), which is what Seattle seems to say. Unsurprisingly, that rancid argument was crushed by this decision.

Chuck said...

The story on how this case was heard in the Sixth Circuit, en banc, is something to behold.

It was an 8-7 decision, wherein (I think) two conservative members of the court recused themselves because of personal ties to the University of Michigan. None of the liberals recused.

David said...

Shhhhhhhhhh.

Althouse is thinking.

Left Bank of the Charles said...

So it's constitutional for a state to have affirmative action, but also constitutional for a state not to have it.

I'll bet we'll see the Supreme Court apply that same principle applied to gay marriage.

And then of course the NPV Interstate Compact rationale will be co-opted for the Traditional Marriage Interstate Compact.

drozz said...

Sotomayor had a hissyfit.

Most of which had nothing to do with the case at hand.

She even added pretty graphs and everything.

Jay said...

Shorter University of Michigan President Mary Sue Coleman:

Blacks are dumb and they need my help to get into college.

Oh, and "diversity" is great for lily white liberals like me because we won't live anywhere near (scary) black people.

Real American said...

Of course, Sotomayor dissented. She wouldn't be where she is if people and institutions had not lower their standards and allowed her to rise up the ranks on account of her race and gender. Of course, the man who nominated her for her current gig also got his job because people lowered their standards and qualifications and ignored his lack of fitness for the position because of his race.

Brando said...

What an unwise Latina.

cubanbob said...

"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."

The left logic here is awe-inspiring. Taken to its confusion it simply means anything the left opposes is inviolate and can't be changed by the electorate nevermind a clear textual reading of either a state's constitution or the federal constitution. So if the electorate of Michigan decided that the cost of Medicaid was too high a burden the electorate cannot vote to have the state end it's Medicaid program. Or eliminate the public schools and give the parents vouchers to be spent on private schools or pass a comprehensive right-to-work act among others.

Alex said...

So the US Supreme Court decides that voters in a state could vote on constitutional amendments that ban affirmative action but those same voters cannot make decisions on gay marriage?

Hyphenated American said...

""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."

Did the self-proclaimed "wise latina" explain which basic rules were changed or did she find this task too complex for her?

Moreover, what is a "racial minority"? Are Russian Jews a "racial minority"? How about Hispanics from Spain? Or Indians? Or Chinese, Japanese, Koreans, Vietnamese? Did they feel "uniquely disadvantaged" when the people decided that discrimination based on race was illegal?

Lucien said...

Ann is on the nose when she writes "affirmative action in admissions is based on the government's interest in diversity". This is true, but it should be based on a compelling state interest. Here, in an exercise of direct democracy, the people of Michigan have stated that the interest of the state is in not having racial preferences. The referendum was needed because the governing class shirked its duty to represent the people.

Tom said...

Alex,
There's a distinction between the gay marriage ban issue and affirmative action as it relates to popularly voted statutes/amendments to state constitutions. Affirmative action itself is a violation of the equal protection clause (even though the SC hasn't gone that far in declaring it so), while a gay marriage ban is arguably a violation too.

On one hand, Michigan voters are doing what Scalia points out -- essentially ratifying the clear text of the equal protection clause. On the other hand, a gay marriage ban, voted on by a state's voters, is potentially a violation of that same clear text.

If I could summarize -- the Supreme Court in the past has stated that a state MAY have affirmative action programs but it's not required. Sotomayor is trying to say that a state MUST have affirmative action programs, which would be a significant step up from past SC precedent.

With gay marriage, the SC may say that a state CANNOT enact a gay marriage ban.

So, affirmative is optional, not required (not sure about the old Confederate states), while gay marriage may end up clearly verboten.

Ann Althouse said...

"Ann is on the nose when she writes "affirmative action in admissions is based on the government's interest in diversity". This is true, but it should be based on a compelling state interest. Here, in an exercise of direct democracy, the people of Michigan have stated that the interest of the state is in not having racial preferences. The referendum was needed because the governing class shirked its duty to represent the people."

Affirmative action is based on diversity -- as I put it -- because in the cases, that has been the only government interest the Supreme Court has recognized as compelling as is required under the applicable strict scrutiny. For the sake of concision I did not repeat that point in this post.

The issue in this case was NOT whether affirmative action can or did pass strict scrutiny, although the Court necessarily presumes that it does.

Ann Althouse said...

And, by the way, I do not mean to be taken to be saying diversity really is the reason that government is trying to serve when it has an affirmative action policy, so I don't even like the extent to which you're giving me credit for getting something "on the nose."

My point is that the diversity interest -- which purports to be for everybody, all the students -- is officially the necessary reason why aa is constitutionally. That being the case, the change in the political process (requiring a constitutional amendment to adopt aa) is not a specific injury to the minority groups that get admitted under aa. It's general, because aa is for everybody.

SomeoneHasToSayIt said...


The Women's Locker Room and Shower, lacks diversity.

The liquids on offer at the Al Anon buffet, lack diversity.

The Dean's Honor Roll lacks diversity (where are the knuckleheads and slackers?)

'Diversity' is a nonsense concept in many venues, including campuses.

n.n said...

The problem with Sotomayor and Ginsburg is that their racial classifications are factually and practically wrong. Their insular perspective of people, which does not recognize the motives and heritage of individuals, is a cause for bigotry. So, they not only fail to appreciate individual dignity, but it would also explain their failure to acknowledge intrinsic value.

Chef Mojo said...

I can never get a straight answer as to WHY diversity is a necessary thing to begin with, or why it's in the public interest. With so many minorities self segregating within society, I fail to see why enforced diversity is considered a grand fix-it for society's ills.

Eric said...

I hope I'm smart enough one day to use "stymieing" in a sentence. Ooops, I just did. How satisfying.

Hyphenated American said...

Does bringing in unprepared and unqualified blacks and Hispanics to universities at the expense of whites and Asians really educate our students and help them to understand the world better?

Brando said...

Chef Mojo--the short answer is racial diversity isn't actually a good (or bad) thing. But a school (or business) that is racially diverse can be evidence for showing that you don't discriminate based on race. When a school says they want a diverse faculty or student body, they're trying to say "we want people to at least think we don't weed out the blacks and hispanics" even though they may not have been discriminating in the first place. So, they discriminate in order to prove they weren't discriminating.

Other types of diversity (like ideological diversity or skills diversity) obviously can be very useful to any institution or organization, but so far no one has shown why an all white student body (or workforce) is worse or better than a racially mixed student body. It's really the last grasp for those who favored racial preferences and previously tried to use "levelling the playing field" and "making up for past wrongs" as the justification. Those arguments fell out of favor over time--how do you account for children of mixed marriages? Why discriminate for some races but not others, such as recent immigrants from Asia? How many generations removed from the wrong do we have to be before the wrong no longer needs to be remedied?

The inconvenient fact is that blacks and hispanics in particular have been underperforming despite racial discrimination being illegal for fifty years, and the racial preference crowd cannot account for this. Rather than doing the hard steps of identifying what may be holding certain minority groups back--terrible public school systems? State assistance and policies that discourage the very behaviors that would help alleviate poverty? Cultural issues?--they need to see a racist under every bed, and some aspect of "white privilege" that still exists to hold minorities back. The easy corrective for this is granting some extra spots in colleges to middle class black and hispanic kids, which of course often results in those kids performing poorly compared to how they might have done in less competitive schools. But the diversicrats don't really care about the individuals who are harmed--and especially not those individuals who may be white or Asian that lost a spot!--because they can still appease their consciences by continuing these policies. And they can continue to blame phantom racists and white privilege when these policies continue to not work for another fifty years.

Chuck said...

For the Althouse readers who were not living in Michigan during the '06 election season; the campaign to defeat Proposal 2 (a/k/a the Michigan Civil Rights initiative) was by far better-funded and by far more supported by all of the major social institutions in the state.

The University of Michigan more or less officially opposed it. The Detroit Free Press inveighed against it and pretty much used its pages to actively lobby the vote. A wide array of large corporate interests signed up for the campaign to defeat it. A bevy of entertainment, sports and other public affairs stars all opposed it.

And yet, with modest funding and very little by way of powerful public interests backing them, Ward Connerly and Jennifer Gratz helped pass it. By a wide margin.

Lucien said...

Ann:

My half-joking "on the nose" reference was about the "agency problem" involved when the government (agent of the people, as principals) asserts that the state has a compelling interest in diversity, and then the principals, through a direct democratic process like a referendum, correct their public servants by establishing that the overriding interest is in the state not discriminating on the specified grounds.

It is not for judges to decide what the interests of the state should be -- that is a political, and non-justiciable matter -- but to determine whether the actual interest of the state in pursuing a policy subject to strict scrutiny is in fact compelling (and the means of advancing it narrowly tailored).

Andy Freeman said...

What are we allowed to say and conclude in this discussion on race?

We know that Sotomayor thinks that we shouldn't be able to say/conclude that we won't have official govt discrimination on behalf of certain groups.

She's not far from saying that we must have official govt discrimination on behalf of those groups.

If the only acceptable outcome of these discussions is how much govt bias we're going to have....

Would be unconstitutional for Michigan to stop funding its university system?
Assume for the purposes of discussion that said defunding is because Sotomayor's position won, so the university is obligated to discriminate.

Marshal said...

"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."

As usual the left must mislead in order to make their case. A majority of the Michigan electorate changed the rules back to what they were before unelected bureaucrats took it upon themselves to change them behind closed doors.

SomeoneHasToSayIt said...

Brando said...
. . . Rather than doing the hard steps of identifying what may be holding certain minority groups back--terrible public school systems? State assistance and policies that discourage the very behaviors that would help alleviate poverty? Cultural issues?--they need to see a racist under every bed, and some aspect of "white privilege" that still exists to hold minorities back. . . .


You see, that's the problem right there. Brando wrote a very thoughtful, reasoned and respectful comment, but in the examples offered, stayed well clear of what I wrote about in my first comment above - the elephant in the room that is the Occam's Razor most likely actual cause. Yes, that cause is tragic if true. But by ignoring it, by crafting solutions for every other possible 'cause' but that one, we are playing Sisyphus in every sense.

We need to bring back the factory jobs that were sent over seas. We need a Renaissance of the Trades. We need to take pride and restore honor to the Service jobs. That's the answer. Not shoe-horning the unqualified into college.

Dave Schumann said...

@SomeoneHasToSayIt -- I'm baffled by a similar meme that's absolutely universal these days, which is that race "does not exist". "There is no race gene" etc etc.

While there might not be a particular set of chromosome locations corresponding to anything that an American would consider "black" (for example), there seems to be something profoundly unscientific, really magical or religious, about these kinds of statements. Of course there are aspects of physical appearance, such as hair, eye, and skin color, that are inherited and very strongly tend to cluster together. These characteristics are genetically coded. People read bundles of these characteristics as "race". "Race" is genetic.

Thus there seems to be an anti-scientific element of condescension in this idea that "there is no such thing as race, genetically". Of course there is. We can have a robust, data-based debate about what tends to be inherited OTHER THAN appearance -- in my opinion, very little, but that's just based on personal experience.

But instead, certain people like to pretend -- SIMULTANEOUSLY -- that race is very important and that it's somehow not genetically inherited. Because to admit that appearance is genetically inherited might mean having to participate in a debate about what else is.

Bruce Hayden said...

I can never get a straight answer as to WHY diversity is a necessary thing to begin with, or why it's in the public interest. With so many minorities self segregating within society, I fail to see why enforced diversity is considered a grand fix-it for society's ills.

As someone else pointed out, diversity is the only way that the left and the race hustlers have managed to justify race based preferences, in the face of the obvious wording of the 14th Amdt. What they really want are real racial preferences and quotas. But, that isn't going to work until the left has a super-majority, and, even then, they will have to overcome the settled precedents.

If you want to see this in action, look no further than the Pigford settlements, where the DoJ, under a Black AG, settled with Blacks in a class action suit, for long ago discrimination based on race in getting DoA help in farming - and many of those getting awards weren't even trying to farm at the time. It was pure reparations, and nothing more. And, since AG Holder wasn't passing out his own money, but ours, his dept. essentially allowed massive fraud in the settlement - the only real requirement was that the recipients had to have been Blacks who thought, even in a weak moment, about the possibility of maybe farming some day. Maybe.

CBC (Congressional (progressive) Black Caucus) has long pushed for reparations. That is one of the things that they try to demand to be a part of the Dem coalition. And, Affirmative Action is not dissimilar - special preferences based solely on race because they were willing to supply the votes needed for President Obama to be elected and reelected, and that other Dem politicians retained their seats. That is what they demand for their participation.

Douglas said...

Reporters are always writing about the length of an opinion as if length had some weight, as if it carried some indicia of the strength of the arguments presented. Of course, that's ridiculous, but it seems to be excused because most reporters (even those who have law degrees) don't know the first thing about judging or the law. It's a lot easier to write about how long an opinion is than to actually read it, understand the arguments it's making, and criticize those arguments. I guess I shouldn't be bothered by this kind of stuff, but I am.

Jupiter said...

Hidden in that bouquet of bullshit was this little nugget;

"Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up."

Obama introduced us to this tendentious little leftie talking point with his homily about the poor black man whose ears are constantly assaulted by the clicking of white people locking their car doors, and the harsh rustle of white women clutching their purses (Because only white people lock their car doors or clutch their purses).

Unfortunately, Sotomayor has kind of botched the meme here. She seems to suppose that the injustice done the "young man" lies in in the failure of passerby to be aware of the nice house his parents own. No, no, Wise Latina! It is equally wrong to "tense up" around people who grew up in bad neighborhoods! No tensing around young men, you white people.

They may be overplaying the hand a bit here. People who "tense up" around "young men" are seldom displaying their conviction that race doesn't matter. Far from it. And she has also inadvertently betrayed her awareness that race is not the only factor. Nobody is "tensing up" around the "young woman", even if they don't believe her story. Is Sotomayor telling us that it's OK to know which sex is more prone to violence, but not which race is?

gregq said...

"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."

Oh, bullshit. The Seattle series of cases are about 5 black robed would-be dictators using their power to trample over people's democratic rights and force the bullies political decisions on the American people.

It was about supporting those racists who want to use the political process to hurt "white" people, rather than supporting those racists who want to use the political process to hurt "black": people, which was the previous preference of racists on the Supreme Court.

"Anti- white" or "anti-black", it's all racism in the end.

JohnSmith said...

Once the left succeeds in importing an electorate more to its liking and gets its absolute lock on the Presidency (another ten or twenty years), the SCOTUS will eventually be composed of nine Sotomayors. It's going to be awesome for the country!

Brent said...

"Sotomayor is trying to say that a state MUST have affirmative action programs, which would be a significant step up from past SC precedent."

Actually, that is not a correct summary of Sotomayor's opinion (though, who can blame you, it is terribly written and too long for the topic).

Sotomayor says that the university boards may choose to use affirmative action or they may not. It is by no means a constitutional requirement that they do.

But she thinks it is unconstitutional to make it more difficult to influence the universities to use race as a factor in admissions. In other words, I can easily petition the university board to consider juggling skills in admissions. But to get the board to consider race, I would first need to pursue the expensive and difficult process of amending the state constitution. To her, that is a violation of the equal protection clause.

Scalia does a great job of destroying Sotomayor's argument. But I think it is only fair that we properly represent what it is. Then again, I could be wrong because I resorted to skimming the boring novel she wrote.