Picking up where we left off in Part I …
LARRY: What took you so long to get coffee?
JOHN: Some woman was holding up the line, trying to buy coffee for what appeared to be a group of four 14-year-olds. Do kids really drink coffee when they’re that young these days?
LARRY: Who the heck knows what kids are doing these days? Apparently, they sit around meme-ing quite a bit.
JOHN: Yeah. I really don’t get it. Anyway, let’s get back to Schuette. I can’t believe you keep making the argument that Michigan’s affirmative action ban discriminates against racial minorities.
LARRY: Well, I think that’s a pretty significant problem.
JOHN: The problem I have with it is that your argument is hypocritical. In the 2003 Grutter case, your allies argued that affirmative action is okay because it benefits all students at universities, not just the minorities. The winning argument suggested that by making sure universities have sufficiently diverse incoming classes, all students benefit from the variety of perspectives and experiences provided by their peers. Back in 2003, the Supreme Court bought that argument and ruled that although racial preferences are generally problematic, when it comes to university admissions, racial preferences are okay because they improve the quality of education for all students on campus.
LARRY: Listen, there’s no point in rearguing the Grutter case.
JOHN: Oh, I’m not trying to. That fight is over. I disagree with the result, but your side won the battle. My point is that your argument in this case conflicts with the argument that was made in favor of affirmative action in that case. Back then, your side won by arguing that affirmative action benefits everyone. Now, you’re arguing that Michigan’s affirmative action ban is unconstitutional because it only harms racial minorities. You can’t have it both ways. If it was true in 2003 that affirmative action benefits all students on campus, it cannot possibly be true that banning affirmative action only harms minorities now.
LARRY: Well, my argument isn’t dependent on the idea that the ban on affirmative action only harms minorities. But let’s take a step back here. You have to admit that the Political Process Doctrine itself is a valid legal principle. The idea behind it is that there is a concern that racist majorities, recognizing that their numbers are dwindling, will entrench racism into the legal system, so that even when the majority of voters no longer support the racist policies, the policies themselves will remain entrenched in law because they are difficult to change. For example, the 1969 case, Hunter v. Erickson, dealt with an amendment to the city of Akron, Ohio’s charter (essentially the city’s constitution). The amendment required any new Akron housing ordinances involving race to be approved by the electors in addition to the counsel. The Supreme Court held that the amendment was unconstitutional because it made it extra burdensome to change laws having to do with race.
[Enter Michael E. Rosman, another lawyer who filed a brief in support of Michigan’s constitutional amendment in Schuette]1
MIKE: Hey, John, Larry.
LARRY: Hey, Mike.
JOHN: Mike, you’ll enjoy this. Larry was just telling me why he thinks the Political Process Doctrine is essential.
MIKE: Haha. Sounds like I walked in at just the right time. The Supreme Court should throw that doctrine out the window in Schutte. It’s worthless.
LARRY: You know, the Court would have to overturn two cases in order to do that.
MIKE Perhaps. But if that’s what is required, that’s what the Court should do. Here’s the problem with the Political Process Doctrine: it’s too broad. There’s no logical way to limit it. I’ll give you an example. Let’s imagine that Michigan did not pass the 2006 constitutional amendment. Instead, the Michigan Supreme Court held that the use of affirmative action in university admissions violates the Equal Protection Clause in Michigan’s Constitution. Would you still be arguing that the Political Process Doctrine applies? If so, you would be arguing that Michigan’s Equal Protection Clause violates the federal Equal Protection Clause, even though the two clauses say basically the same thing!
LARRY: But there would be a difference between the substance of the two clauses in that instance. Because in both your hypothetical and the facts of the Schuette case, we’re talking about racial classifications that are valid under the Federal Equal Protection Clause. The bottom line is that what Michigan did here was make it extra difficult for advocates of racial preferences to achieve their goals.
MIKE: That’s the whole point of equal protection! That’s exactly what should be happening! The Supreme Court has held repeatedly that governmental use of racial classifications is suspect. As a result, courts should strictly scrutinize those classifications. You’re arguing that Michigan’s constitutional amendment violates the Equal Protection Clause because the amendment makes it extra difficult for advocates of racial preferences to achieve their goals. But strict scrutiny itself is supposed to make it extra difficult for advocates of racial preferences to achieve their goals. Heck, based on your logic, the federal Equal Protection Clause even violates the Political Process Doctrine. And since the Political Process Doctrine is based on the Equal Protection Clause, that would mean the Equal Protection Clause violates itself!
LARRY: But you’re talking about extra judicial burdens, not extra political burdens. That’s the critical difference.
MIKE: I don’t think the Equal Protection Clause makes that distinction. But let me tell you my other problem with the Political Process Doctrine. You and I can agree that the Equal Protection Clause creates individual rights, not group rights, correct?
LARRY: That is true, yes.
MIKE: It seems to me that the Political Process Doctrine clearly amounts to more of a group right than an individual right.
LARRY: Well, I think the Supreme Court has been fairly lenient on that issue. It’s kind of difficult to distinguish between a group right and an individual right.
MIKE: That may be true. But the Political Process Doctrine seems like a clear example of the focus of a right being directed exclusively to a group. If Michigan’s constitutional amendment harms anyone, it is the group of individuals who want to collectively lobby for certain admissions policies. No individuals are really harmed by a guarantee of equal treatment. You argued in your brief that the Political Process Doctrine is necessary so the political establishment can’t entrench racist laws. Even if that is true, we’re talking about a group wrong, not an individual wrong.
LARRY: What about the high school student who believes that her racial background will enrich UofM’s educational experience more than the fact that another applicant’s father graduated from UofM 30 years ago or the fact that another applicant was active in her church’s youth group? There are plenty of individuals who benefit from the use of the Political Process Doctrine in this case. And the reality is that the Supreme Court has already recognized the validity of the Political Process Doctrine twice. So, I understand that you don’t like it, but I think it’s here to stay.
JOHN: Sorry, Mike, but I’m with Larry on that one. I think the Political Process Doctrine is here to stay as well. I just don’t think that Michigan’s constitutional amendment violates the doctrine.
MIKE: Alright, well I was just stopping in to grab my daily cappuccino, anyway. I should run. I just heard that yet another federal district court judge struck down a state ban on same-sex marriage. That Windsor opinion last year was fantastic. It’s like Justice Kennedy is playing a game in which he gradually hints more and more that he’s going to strike down all same-sex marriage bans, just to see how lower-court judges react. I would love it if after all the hinting, once he finally does make a decision, he upholds the bans, baffling every judge and legal scholar in the country, including Justice Scalia.
LARRY: That certainly would be entertaining. Take it easy, Mike.
MIKE: See you guys.
JOHN: Later, Mike.
Here is Part III, the thirst-quenching conclusion of our coffee house conversation about Michigan’s constitutional ban on affirmative action.
1. For those who clicked through just because of my “special guest” teaser, who were you expecting, Oprah?