CURATED BY Libby Nelson
2014-07-15 17:37:05 -0400
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Six justices voted in favor of upholding the ban, although for different reasons.
Voters can choose to eliminate affirmative action, and courts should not overturn those decisions, Justice Anthony Kennedy wrote in the controlling opinion upholding the Michigan ban: "Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persistent injustice," Kennedy wrote.
If the court overturned the ban, he wrote, the justices would be saying that voters weren't capable of dealing with the question and that those decisions don't belong in the realm of public debate.
"Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor," Kennedy wrote. "But that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate."
Kennedy, the court's swing vote, was joined in the opinion by Chief Justice John Roberts and Justice Samuel Alito.
Justices Antonin Scalia and Clarence Thomas wrote a concurring opinion: they also agreed that the Michigan ban was constitutional. But Scalia and Thomas, no fans of laws or policies that take race into account, wanted to go further, overturning two prior Supreme Court decisions . Those cases — one dealing with an antidiscrimination housing ordinance, the other with a school busing law — form the core of what's known as the political process doctrine. That doctrine holds that laws making it more difficult for minority groups to seek changes that would benefit them should be subject to strict judicial scrutiny.
Justice Stephen Breyer also agreed with the majority decision and wrote a concurring opinion of his own. His opinion, however, was much narrower, making clear that he agrees only when race-conscious admissions policies meant to achieve a diverse student body are in question, and when those policies previously rested in the hands of unelected officials. Breyer agrees with the political process doctrine, but argues that it did not apply in the Michigan case.
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