When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

On not taking a second look at that UT affirmative action case.

Linda Greenhouse writes about the potential for the Supreme Court to look once again at Fisher v. University of Texas — the affirmative action case that it sent back to the Court of Appeals in 2013. Greenhouse has written before to express her view that the Supreme Court will not (should not?) take the case again. Last July, after the 5th Circuit opinion came out, she wrote: "unless the new appeal offers a plausible vehicle for getting rid of affirmative action... why would the justices bother?"

But on this blog, we were talking about Richard D. Kahlenberg's contention that the 5th Circuit opinion "is likely to invite review—and reversal—of the lower court’s decision."  Kahlenberg said:

Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.

I summed up what Kahlenberg said were the 3 things Kennedy said that Higginbotham defied:

... Higginbotham "dismissed Kennedy’s emphasis on race-neutral alternatives," "blithely asserted"  that alternatives like socioeconomic affirmative action "wouldn’t work," "paid lip service to Kennedy’s requirement that courts give 'no deference' on the question of whether alternatives can produce 'sufficient' racial diversity," failed to require the University to give definition to its goal of "critical mass," and "took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent."

Okay, now back to Greenhouse's new essay on the subject of why the Supreme Court should leave Fisher II alone. Greenhouse says that the 2013 Fisher decision seems to have been "the result of some kind of compromise":

But what actually happened inside the court remained unknown outside until the publication this past fall of a new book about Justice Sonia Sotomayor by Joan Biskupic, a longtime legal journalist in Washington, D.C. The book, “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice,” discloses that the original vote was 5 to 3 to disallow the Texas plan.

Wow! I don't remember reading that before.

Chief Justice John G. Roberts Jr. assigned the majority opinion to Justice Kennedy. The dissenters were Justices Ginsburg, Sotomayor and Stephen G. Breyer. As the senior justice in dissent, Justice Ginsburg gave Justice Sotomayor the task of writing a dissenting opinion that would speak for the three.

Notice the name Linda Greenhouse omits: Elena Kagan. Kagan — according to Biskupic — voted along with Roberts, Scalia, Kennedy, Thomas, and Alito to find an equal protection violation in the UT affirmative action policy. I guess I'd better get Biskupic's book (which I must have bypassed because I don't need any more detail on Sotomayor's rise to power). [CORRECTION: No. Kagan recused herself. I should have remembered... or at least noticed that 5 + 3 ≠ 9. Now, once again, I'm free not to get Biskupic's book. ]

But let's stick with Greenhouse:

According to [Biskupic]’s account, Justice Sotomayor circulated a proposed dissent that was passionate and — my extrapolation — polarizing. With “Sotomayor as agitator, Breyer as broker, and Kennedy as compromiser,” Ms. Biskupic writes, there ensued a weeks- and eventually months-long effort to “lower the temperature” and produce an opinion that justices in the competing camps could sign. It succeeded, as Justice Kennedy gradually inched toward the minimalist opinion that Justice Sotomayor was willing to accept. (Justices Antonin Scalia and Clarence Thomas signed the Kennedy opinion as well, but also wrote separate opinions to make clear that they would relish the opportunity to overturn the court’s affirmative action precedents.)

Greenhouse guesses that the polarizing Sotomayor opinion was a lot like what we saw from Sotomayor last year in her long fervent dissenting opinion in Schuette v. BAMN (the case about Michigan's new state constitutional provision banning affirmative action).

Obviously stung and undoubtedly annoyed, Chief Justice Roberts responded in his own opinion that it “does more harm than good to question the openness and candor of those on either side of the debate.”

Against that background, does the court really want to invite a replay of Fisher v. University of Texas? 

Why should Sotomayor's willingness to let loose with some passionate, high-handed rhetoric affect which cases the Court chooses — especially after that Fisher I compromise — if that's what it was — ultimately failed to stop her from saying all those things anyway? We already heard it all in Schuette, so that seems to clear the way for the Court to finish resolving the University of Texas controversy. The 5th Circuit doesn't seem to have responded to the nudge the Court gave it in Fisher I, so now it's the Supreme Court's turn again. Why not?

As the Fifth Circuit opinion makes clear, the case presents a Texas-specific issue. The 10 percent plan is required by Texas law, and no other state has anything like it. 

It was just as Texas-specific the first time up, but there is a larger issue, and it was perfectly apparent back in Fisher I: How seriously must courts take the strict scrutiny requirement that considering race must be necessary to the achievement of classroom diversity?

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.

"Compare this reception of Sotomayor’s deeply personal dissent with how her colleagues talk about Thurgood Marshall’s time at the court..."

Dahlia Lithwick invites us into the world of comparative race consciousness. There are so many disparate points of comparison. Thurgood Marshall was a black man born in 1908. Sonia Sotomayor is a Hispanic woman born in 1954. And Lithwick is comparing written responses to a written judicial opinion and spoken reminiscences about private personal interactions with a colleague. But anyway, here are Lithwick's musings:

Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism! 

There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?

Maybe Marshall was allowed to talk about race because Marshall lived in a time the current justices still acknowledge was an era of “real” racism. Which in their view ended with the passage of the Civil Rights Act. Or maybe Marshall was allowed to speak so pointedly and openly about the intersection of race, law and his own life, precisely because, as Justice White explained it, White and his colleagues were well aware of all that they “did not know due to the limitations of our experience.” But maybe the time of acknowledging that you don’t know as much as you thought you knew about race is over. Because, seemingly, and by popular acclaim, racism itself is over.

Where is this "popular acclaim"? Stressing the importance of "reality," Lithwick invents a cartoon picture of how other people think. The issue that divides the Court isn't whether or not racial problems persist, but whether the government should be classifying human beings by race as it goes about trying to solve the various problems and risks making them worse.

And Lithwick never even mentions Clarence Thomas, who would seem to offer a second basis for comparison. How have his colleagues received the things he's written that disrupted the way they wanted to think about race? To be fair, Clarence Thomas did not write an opinion in this new case Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary, which had 5 opinions, only one of which was a dissenting opinion. Thomas joined Justice Scalia's opinion, which deserves a separate post. I'm just calling attention to Thomas because Lithwick is ignoring him, even as she patronizes those who act like it's passé to acknowledge that you don’t know as much as you thought you knew about race. Those other people need to acknowledge that they don't know as much as they think, but the things not known surely don't include the things Clarence Thomas has been writing — notably in Grutter v. Bollinger, which begins with a passage from Frederick Douglass, who was born 90 years before Thurgood Marshall. 

How does Sonia Sotomayor really feel about affirmative action?

Instapundit calls attention to Sonia Sotomayor's dissent in yesterday's Schuette case. He links to James Taranto's "First Among Equals: An Orwellian dissent from a muddled ruling" and to my post "The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism." I'd counted 11 repetitions of the phrase "race matters" within a short segment (4 paragraphs) of Sotomayor's very long dissent, and Instapundit quips: "She also repeats the phrase 'race matters' a lot. But then, it does. It’s how she got her job."

You might think, as I initially did, it's wrong to degrade a particular individual's status by saying they only got it through affirmative action. How many times has Clarence Thomas expressed his outrage at that kind of abuse? But then I happened upon The Washington Post's treatment of the Sotomayor dissent (by Robert Barnes) and saw this:

Sotomayor, 59, has spoken extensively about how affirmative action was key to her rise from a public housing project where her parents spoke only Spanish. The search for minorities to diversify student bodies in the 1970s won her invitations and scholarship offers from Ivy League schools she had only just learned existed.

She excelled at Princeton, winning the top undergraduate prize, and went to Yale Law School. But she has drawn diametrically different lessons about the experience than Justice Clarence Thomas, the court’s only African American, who said affirmative action cheapened his Yale Law degree.

So I guess the Instapundit gibe bounces off Sotomayor and hits Clarence Thomas. And why not? Sotomayor is going to vote to uphold affirmative action, even as Thomas consistently votes against it. (Doesn't "vote" look wrong there? Is it too late or too prissy or too unrealistic to say we should scrub "vote" from our speech about the judicial work that's done in group-project form?)

But — as Barnes detected (combing through the 58-page dissent) — Sotomayor has arrived at an aversion to the term "affirmative action." As Barnes puts it:

She even wrote that she was not going to use the term “affirmative action” because of its connotation of “intentional preferential treatment” such as quotas, because the court has outlawed such practices. Instead, she called it a system of “race-sensitive admissions policies.”

She even wrote… What is the function of "even"? Barnes credits Sotomayor with enthusiasm for affirmative action, then encounters her rejection of the term and substitution of a euphemism. The word "even" implies additional enthusiasm, not its opposite. I found that a bit puzzling. Here's the relevant text from Sotomayor's opinion, at footnote 2:

Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bollinger, 539 U. S. 306 (2003) . There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly, id., at 334, and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341–343, and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” id., at 339. Grutter-compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentionally and solely on the basis of race.

Here is this term — "affirmative action" — composed of 2 very positive words —  "affirmative" and "action" — a term that has been used and defended for decades, and Sotomayor decides it's time for a euphemism? She may perseverate for 58 pages, but that backing off from the traditional term of art shows insecurity in the soundness of the position. In fact, going on for 58 pages — longer than the 4 other opinions combined — can also be regarded as a sign of insecurity.

What if a Supreme Court Justice, writing an opinion upholding the right to abortion, suddenly announced — in a footnote — that she wasn't going to use the word "abortion" anymore, because "some comprehend" it to mean things she thought were incorrect and distracting? Henceforth, she's only going to call it "reproductive freedom."

I'm sure you can think of other examples to make the point that it's a sign of insecurity in the acceptability of the practice. Imagine a 19th-century judge writing an opinion upholding the right to own slaves and dropping a footnote to say he wasn't going to use the term "slavery" anymore, because it set opponents' minds reeling into thoughts he needed to control. He's only going to refer to it as "our peculiar institution."

So… how does Sonia Sotomayor — the Justice chosen for her empathy — really feel about affirmative action?

Why is Fisher taking so long?

Linda Greenhouse says:

One reason might be that Justice Anthony M. Kennedy, who almost certainly received the opinion assignment in the Texas case, isn’t going far enough in that case to satisfy the other conservative justices. Under this theory, those justices responded to what they saw as a frustratingly narrow Kennedy opinion by jumping aboard the Michigan case as the next potential vehicle for shutting down affirmative action....

Fisher is the case argued last October, about the University of Texas affirmative action program, but the court granted cert. just last March in a case about Michigan's ban on all affirmative action in public university admissions. (That case is called Schuette.)

"The affirmative-action case liberals deserve to lose."

By Emily Bazelon, who is a liberal, at Slate, which is liberal (so this isn't some conservative fakely "helping" liberals see the light, in the style of articles like "Do Yourselves a Favor, Republican/Raise the debt limit high enough that we don't have to debate it again until after your primaries," a teaser on the front page of Slate right now).

I'm very interested to hear about this morning's argument in the case Bazelon is previewing, Schuette v. Coalition to Defend Affirmative Action. The argument against the Michigan constitution's ban on affirmative action in education is so abstruse that no article aimed at laypersons can explain it. Bazelon does a creditable job — at paragraphs 4-6 at the link — but I've repeatedly read (and taught) the strange cases that the argument is based on, and I've seen year after year of law students struggling just to see what the Court was saying in those cases, which must be further extended to reject the Michigan ban. If the Supreme Court embraces that argument, people won't understand why, and it will help conservatives in 2014 and 2016.

Which is why I read Bazelon's "liberals deserve to lose" as "liberals should want to lose."

The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

In Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary, today's new Supreme Court opinion (discussed at length in the previous post), Chief Justice Roberts, having joined the plurality opinion, wrote a very short concurring opinion, apparently because of what may have felt like a personal attack in Justice Sotomayor's concurring opinion.

Sotomayor quoted what I think is the Chief Justice's most famous line, the aphorism that ends his opinion in the 2007 school-desegretation case Parents Involved: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Sotomayor rejects this "sentiment" as "out of touch with reality," and delivers 3 didactic paragraphs each of which begins with what might very well feel like a condescending use of the phrase "race matters":

Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process...

Race also matters because of persistent racial inequality in society...

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. 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. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable.

I'm sure many readers will love the lilt and pithiness those 9 "race matters" bonks on the over-abstract head of the Chief Justice, but I suspect that inside that head, it felt like an attack that had to be met with an even pithier response. First, Roberts can't let stand this assertion that he doesn't understand reality, and second, the very next thing she does is repurpose his best aphorism. She says:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. 

Eyes open, not blind, and mouths open and not sparing you from the ongoing conversation about race. As an added fillip, she equates color-blindness with "sit[ting] back" and trying to "wish away, rather than confront, the racial inequality that exists in our society": "It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter."

That's 2 more bonks with the "race matters" hammer, for a total of 11.

He had to respond, and his response, though couched in politeness, shows he felt wounded:

[I]t is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that ["I do not belong here"] doubt, and — if so — that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.

Interestingly, each Justice accused the other of shutting down the conversation about race. Sotomayor expressed the desire for everyone "to speak openly and candidly on the subject of race," and Roberts wanted respect for the "the openness and candor" of the argument for race-neutral government policies (which, it really must be conceded, can be favored even by those who get that race matters in real life).