Stanford Law Review Online: Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath

Stanford Law Review

The Stanford Law Review Online has just published an Note by David R. Friedman entitled Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath. Mr. Friedman argues that:

[M]any of the Justices, especially Justices Sotomayor and Ginsburg, seemed troubled by the implications of Michigan’s amendment for traditionally disadvantaged minorities. At the same time, several Justices seemed perplexed by the potentially wide scope of a doctrine that, in its most expansive form, subjects every law that moves a decision from one level of government to another to strict scrutiny. For instance, if Michigan’s constitutional amendment is subject to strict scrutiny, is Title VII subject to strict scrutiny? Is the Fair Housing Act? Is 42 U.S.C. § 1983? All three of these laws similarly move a decision involving race—the decision of how much governmental protection to provide against racial discrimination—from one level of government (the states) to another (the federal government). These types of potential consequences led to a great deal of time being consumed by questions looking to answer that classic legal question: where do we draw the line?!

He concludes:

The Michigan electorate should be required to pay now or pay later to prove that the laws of its state do not violate the Constitution. If it chooses to pursue a state constitutional amendment through direct initiative, it will trade the scrutiny of the legislative process, mediated by those who have taken an Article VI oath to uphold the Federal Constitution, for the burden of affirmatively proving that its measure is constitutional.!footnote_21 If it chooses instead to lobby its state legislature to propose a state constitutional amendment, it will face no such burden later in the process. Only by requiring this choice can we really be sure that “equal treatment” is actually the same as “equal protection” in this case.

Read the full article, Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath at the Stanford Law Review Online.

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8 Responses

  1. Brett Bellmore says:

    You might ask if the 14th amendment itself is prohibited by this reasoning.

  2. AndyK says:

    Indeed, EVERY law moves something from one level to another, if only because of the canon against implied repeal— the later statute has to be clear on the subject of repeal, so there are limitations on the later form of a statute.

  3. Joe says:

    The 14A provides that “[n]o state shall . . . deny to any person . . . the equal protection of the laws.”

    Proposal 2 blocks certain groups from obtaining a benefit, groups traditionally disadvantaged which if anything might warrant remedial help the other way, unless the proposal itself is overturned.

    These groups therefore have it harder to obtain things via normal political processes. Proposal 2 doesn’t require “EVERY” person to go thru more hoops. If it did, the case against it would be weaker. It singles out certain groups.

    Also, the 14A is violated by what “reasoning”? The article argues that direct democracy should be put to a higher test, in part because legislators have to take an oath/affirmation to uphold the Constitution. The 14A had to pass thru state legislatures where that is taken. So, it wouldn’t violate the article’s weaker standard test. If the question addresses the Sotomayor/Ginsburg concern, as noted, unlike the 14A, Prop 2 is not neutral.

  4. Brett Bellmore says:

    “Proposal 2 blocks certain groups from obtaining a benefit”

    Where the benefit they are being blocked from getting is just precisely the unequal protection of the laws. Which is not incidental to the whole argument.

    To quote the Nineth circuit’s ruling on a similar proposition in California, “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

  5. Joe says:

    The question is not if the state is blocked by the 14A to voluntarily provide affirmative action, which has been accepted in certain ways by the Supreme Court. The SC has never held that use of affirmative action is “precisely unequal protection,” and preferences are allowed in various instances.

    But, if that is the concern, the law is unconstitutionally underinclusive — it only allows certain groups to be required to go thru extra hoops. The law should be neutral in blocking “unequal protection of the law.”

  6. AYY says:

    This post doesn’t inspire much confidence in the judgment of the Stanford Law Review editors. Ordering us to read the article is a bit bossy and the excerpts they give don’t justify their orders.

    They start off by telling us what the student author “argues”, but it’s not really an argument, it’s a pedestrian observation that won’t make any difference once the decision comes out.

    The more substantive paragraph they quote has some major problems:
    First, the burden is normally on the challenger of legislation to show it’s unconstitutional, not on the defenders to show that it is constitutional.
    Second, since when are Michigan state legislators bound to take the oath under Article VI? The oath applies to federal legislators. And besides, the ones who are ordering preferences aren’t always legislators, they’re often unelected state officials.
    Third, haven’t the editors ever heard of preememption. The Michigan Constitution can’t override the federal constitution, so if preferences are required by the federal constitution, or by federal law, the Michigan constitutional provision doesn’t come into play.
    Fourth, any legislator who had to vote on the amendment would have good reason to say it doesn’t violate the federal constitution. He could just point to the 14th Amendment, or the 9th Circuit decision on Prop 209.

    This is just what’s wrong in the part the editors thought was so good,they used it as a teaser. It doesn’t bode well for the rest of the article.

  7. Brett Bellmore says:

    “The law should be neutral in blocking “unequal protection of the law.””

    The Michigan Civil Rights Initiative IS neutral in blocking unequal protection of the law. Like the 14th amendment itself, it doesn’t single out a particular race for protection. Moreover, it still permits racial preferences where required by court orders. What it doesn’t permit is exactly what you say isn’t the question: The state or state actors in Michigan voluntarily adopting racial preferences, rather than being required to by a higher authority.

  8. Jimbino says:

    Has any official ever been prosecuted for failure to uphold the constitutions or laws of the land? If they’re not into walking the Appalachian Trail, feeling-up women, or child porn, they’re guaranteed office forever, it seems.