The prospects for the pro-affirmative action plaintiffs in Tuesday’s Schuette v. Coalition to Defend Affirmative Action Supreme Court case were never terribly promising. And the oral arguments yesterday did little to challenge that notion. 

Schuette concerns the constiutionality of Proposal 2, a 2006 Michigan state ballot initiative which banned affirmative action in public education, hiring and contracting. The law, pro-affirmative action plaintiffs argued, violated the 14th Amendment’s Equal Protection Clause by singling out people of color and those who want diverse college campuses and putting the political process further out of reach for them and them alone. 

The conservative wing of the Supreme Court wasn’t much convinced. Justices Roberts, Alito and Scalia were openly hostile toward the case against Proposal 2. Coalition to Defend Affirmative Action attorney’s Shanta Driver asked in her opening argument that the Supreme Court, “bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against majority, which did not occur in this case,” before Justice Scalia cut her off.

JUSTICE SCALIA: My goodness, I thought we’ve — we’ve held that the 14th Amendment protects all 
races. I mean, that was the argument in the early years, that it protected only — only the blacks. But I thought we rejected that. You — you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

He then forced Driver to admit that the Supreme Court had never issued a ruling with that kind of interpretation of the 14th Amendment. Indeed, there are opposing interpretations of the 14th Amendment. The conservative wing’s is that it gives people the right to a race-blind government, even if the race-conscious alternative implements policy with an anti-discriminatory intent. From that lens, the future of race-conscious policy, and affirmative action, doesn’t look so great. 

In Schuette as in Fisher, the Supreme Court’s other affirmative action case from earlier this year, Justice Kennedy appears to be the decisive vote. He peppered the hour with questions about exactly when the “political process theory”—that is, efforts which shift the playing field to unfairly limit political access for one minority group or another—would stop being applicable. Justice Sotomayor accused Michigan of changing the “game posts” every few years to keep students of color at a perpetual disadvantage. 

Because Justice Kagan has recused herself, should either side fail to garner five votes, a four-four split would overturn Proposal 2 in accordance with the Sixth Circuit’s 2011 ruling. 

Read the Supreme Court transcript in full here. (PDF)

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