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Will: A 'Wonderland' moment for the court

  • FILE - In this Jan. 25, 2012 file photo, the U.S. Supreme Court Building is seen in Washington. The health insurance industry is spending millions to carry out President Barack Obama’s health care overhaul, essentially betting that the law or major parts of it will survive Supreme Court scrutiny. (AP Photo/J. Scott Applewhite, File)

<i>"'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'" — Lewis Carroll, "Through the Looking Glass"</i>

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The marble friezes above the U.S. Supreme Court chamber depict 18 great lawgivers, including Moses, Solomon, King John and William Blackstone. Come Tuesday, as the bemused — or so one hopes — justices listen to oral arguments in a case from Michigan, they might wonder why Lewis Carroll is not included. He would have relished the Alice-in-Wonderland argument the justices will hear, which is as follows.

Although the U.S. Constitution's 14th Amendment says "No state shall ... deny to any person within its jurisdiction the equal protection of the laws," the following provision of Michigan's Constitution violates the Equal Protection guarantee: No public university, college or school district may "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting."

Yes, in Tuesday's Through-the-Looking-Glass moment, the court will be urged to declare that Michigan's ban on unequal treatment violates the U.S. Constitution's Equal Protection clause. The U.S. Court of Appeals for the Sixth Circuit — divided 8-7, with five dissents — has said just that, citing what is called the "political-restructuring doctrine."

The argument is that when, in 2006, Michigan voters put in the state's Constitution the ban against racial preferences in higher education, this complicated the task of those Michiganders who want to institute racial preferences. Instead of just lobbying the admissions officials of the state's educational institutions, they must first mount a statewide campaign to amend Michigan's Constitution. The Supreme Court, however, has hitherto applied the political-restructuring doctrine only against laws that change a political process in ways that diminish protection against unequal treatment, not to prevent laws granting preferential treatment.

Could there be a "political-restructuring" objection to the First Amendment? Because it proscribes "establishment of religion," people who favor an established church cannot simply lobby Congress to create this; they first must undertake the burdensome task of amending the Constitution.

So, is the First Amendment a constitutionally dubious restructuring of the nation's political process? Michigan, arguing for the compatibility of its constitutional amendment with the U.S. Constitution's 14th Amendment, notes that in a 2003 case coming from the University of Michigan Law School, the court held that race-conscious admissions policies are presumed to be unconstitutional except in some narrow circumstances. Racial preferences, if carefully tailored as one component in the "individualized, holistic review of each applicant's file" and "limited in time," are <i>permitted</i> for the purpose of promoting academic "diversity." They are not, however, <i>required</i>, and states are not <i>forbidden</i> to decide that banning preferences is proper policy.

Michigan Attorney General Bill Schuette correctly argues that the voters who passed the amendment in 80 of the state's 83 counties were not "restructuring" the political process, they were <i>using</i> the process to give constitutional dignity to the valid ideal of a colorblind society.

Opponents of Michigan's amendment can hardly argue that it was an act of racial animus. They would have to convince the court to speculate about voters' motivations. Furthermore, they would have to persuade the court to disallow the possibility that voters were aware of the abundant social-science evidence that questions the supposed benefits of preferences for those who are stigmatized by receiving them.


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