Affirmative action again split the Supreme Court on Tuesday, as sharply divided justices upheld a Michigan measure that bans preferential treatment in college admissions based on race or ethnicity.
In a highly anticipated and fractured decision, justices in a plurality decision said courts lacked authority to interfere with the political decision made by Michigan voters.
"Courts may not disempower the voters from choosing which path to follow," Justice Anthony Kennedy wrote.
Six justices agreed with the conclusion that sustains the Michigan measure. Only Chief Justice John Roberts, Jr. and Justice Samuel Alito, though, fully agreed with Kennedy's reasoning, limiting the potential reach of the decision. Kennedy, moreover, emphasized the limits of the ruling.
"It is important to note what this case is not about," Kennedy stressed. "It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education."
Conservative justices Clarence Thomas and Antonin Scalia joined in a separate concurring opinion, arguing Michigan's measure was undeniably legal, while liberal Justice Stephen Breyer wrote his own concurring opinion.
Liberal justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
"We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups," Sotomayor wrote.
Justice Elena Kagan recused herself.
The decision in the case called Schuette v. Coalition to Defend Affirmative Action returned the court to a perennial conflict that justices effectively ducked last term. The court in June likewise avoided a sweeping decision in a case challenging University of Texas admissions procedures, as the justices opted to send the matter back to a lower appellate court for further review.
In 2006, 58 percent of Michigan voters approved an amendment to the state's Constitution that prohibits discrimination or the granting of preferential treatment in public education, government contracting and public employment based on race, sex, ethnicity or national origin.
"The people of Michigan concluded that not having affirmative action in higher education was the best policy for the state," Michigan Attorney General Bill Schuette said in a legal brief. "Nothing in the Constitution bars the people of Michigan from making that choice."
The Michigan language resembles that of California's Proposition 209, adopted in 1996. Key supporters of the California measure, including former University of California Trustee Ward Connerly, championed the Michigan measure as well.
While Georgia and four other states joined a brief supporting the Michigan ballot measure, California Attorney General Kamala Harris rallied five other states and the District of Columbia to a brief supporting the benefits of diversity
The court's relatively narrow decision Monday, though, largely sidestepped the costs and benefits of affirmative action, focusing instead on the political process.
"Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues," Kennedy wrote.
The Michigan case further underscored significant changes in the court itself.
In 2003, then-Justice Sandra Day O'Connor wrote a 5-4 decision upholding the consideration of race in University of Michigan Law School admissions. O'Connor has since retired, replaced by the steadfast conservative Justice Samuel Alito. The conservative chief justice who dissented from the 2003 decision, William Rehnquist, has since been replaced by John Roberts Jr., who appears both conservative and strategically minded in his decisions.
By Michael Doyle
McClatchy Washington Bureau