Why the Supreme Court upheld Michigan’s right to ban affirmative action

Dealing a blow to proponents of affirmative action, the Supreme Court ruled 6-2 in favor of a Michigan ballot initiative that banned public colleges from using race as a factor in admissions. For analysis on the court’s reasoning, Gwen Ifill talks to Marcia Coyle of The National Law Journal.

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    Affirmative action made its reappearance at the Supreme Court today, as the justices weighed in on a Michigan ballot initiative that banned public colleges from using race as a factor in admissions.

    By an unusually lopsided 6-2 decision, the justices dealt a blow to proponents of affirmative action, allowing Michigan to join several other states that have already banned or limited the practice.

    For more on the court's reasoning, we turn to Marcia Coyle of "The National Law Journal," who was at the court today.

    So, that 6-2 decision, that kind of tells the tale, doesn't it?

  • MARCIA COYLE, The National Law Journal:

    It does, Gwen.

    The justices who were in among the six had different reasons for why they concluded that there was nothing wrong with Michigan's ban here. Justice Kennedy really wrote the lead opinion, and he was joined by the chief justice and Justice Samuel Alito.

    Justice Kennedy seemed to take pains to make clear when he read a summary of his opinion from the bench that this case was really not about the constitutionality or the merits of race-conscious admissions, but it was really about who should make the determination about those merits.

    And he said that there was nothing in the Constitution or the court's earlier decisions that allowed the judiciary, gave it the authority to take from the voters under their own state laws the right to debate, learn and then act through their political process to resolve that debate.


    What was Justice Breyer's reasoning to side with what's considered to be the conservative side of the court?


    Well, Justice Breyer took a very different tack.

    The lower court here had relied on a 1982 Supreme Court decision that basically said that you can't alter the political processes of government to disadvantage minorities. And Justice Breyer's tack here was, well, this really wasn't an altering of the political processes. This was a shifting of the decision-making from unelected college officials to the public through their vote.

    So he took that position. But it was really Justices Scalia and Thomas in an opinion by Justice Scalia that went farther than Justice Kennedy went with the main opinion.

    First of all, they would just overrule prior decisions talking about altering the political processes, and they would only really see an equal protection violation if voters or states were acting with intentional racial discrimination.


    Justice Sotomayor was one of the two, she and Justice Ruth Bader Ginsburg, to vigorously disagree.


    She did.

    It was an impassioned and lengthy summary from the bench. And whenever justices read portions of their dissent from the bench, it's an indication of how strongly they feel about the case. She was joined by Justice Ginsburg in her dissent.

    And she said this wasn't about who decides to resolve the debate. This was about how you decide. And what Michigan had done here was created two different playing fields. She said, for example, groups — parents, for example, who graduated from one of Michigan's colleges and wanted their children to go there could lobby the college for a legacy preference.

    Other groups could lobby college officials for maybe sports preferences, but the only preference you can't talk to them about here is race, and the only way that groups interested in race preferences can get this change is to actually amend the state constitution, which she said is a Herculean task.


    But now other states which already banned affirmative action, this basically sends a signal to others that they can do the same thing.


    I think we will probably see — there is a very active anti-affirmative action community in this country, and I think we will see attempts to put initiatives on ballots of states to allow that.


    I want to ask you about some other arguments at the court today, once again another high-profile case, this a case — this one they say will determine the future of television.

    And, full disclosure, PBS was part of this argument.



    The major network broadcasters have challenged an Internet startup called Aereo, claiming that its system is violating their exclusive right under the copyright laws to have their programs publicly performed.

    Aereo uses thousands of dime-sized antennas to stream local over the-air broadcast programs to subscribers for a fee, but it doesn't pay the networks for the use of that programming. And, today, during the arguments, the lawyer for Aereo basically said, we're an equipment provider. We're the functional equivalent of what someone can do with home-based equipment.

    But the broadcast networks argue that they're really kind of thieves, that they have a gimmick here, and they are taking programs and not paying for them. They're getting something for nothing.

    During the arguments, I thought the justices were really weighing both sides here, the potential damage to the broadcast networks if they rule for Aereo, and then the damage to Aereo if they rule for the networks.


    You do this a lot, but how can you tell when the justices are — how they're taking in these kinds of…


    Well, their questions.

    For example, Chief Justice Roberts, he said it appeared to him that Aereo's system was designed in a way simply to get around copyright laws. But, on the other hand, he could see a comparison to going into RadioShack and getting a DVR to record programs to watch later.

    Justice Breyer, concerned about the impact of ruling against Aereo, said, you know, what is — what effect is this going to have on cloud computing? We heard a lot about the cloud today in the arguments, which…


    Really? That's unusual.


    … which was fascinating.

    I mean, the justices have taken the time to try to understand the new technology. And there's a concern, if they rule against Aereo, that innovation will be stymied.


    Well, it's fascinating. It must have been fascinating to listen to.


    It was a good argument.


    It was.




    Well, thank you very much, Marcia Coyle.


    My pleasure, Gwen.

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