One of the more interesting exchanges in Schuette involved a colloquy with Chief Justice Roberts, Justice Sotomayor, and the Michigan Solicitor General about ending affirmative action. In response to a question from the Chief about ending affirmative action, and a follow-up from Justice Sotomayor, the SG supported Prop 2 as “accept[ing] this Court’s invitation in Gruter.”
CHIEF JUSTICE ROBERTS: You have been asked several questions that refer to the ending or termination of affirmative action. That’s not what is at issue here, is it? MR. BURSCH: No, and I’m glad that you brought that up, Chief Justice Roberts, because affirmative action means a lot more than simply the use of race or sex-based preferences in university admissions
JUSTICE SOTOMAYOR: Well, but you’re — but this amendment is stopping the political process. It’s saying the board of regents can do everything else in the field of education except this one.
MR. BURSCH: Well, again, it actually runs the other way, because equal protection is what singles out race-focused measures for strict scrutiny. But what we’re saying is under Grutter, race preferences are barely permissible. It cannot be unconstitutional for the people to choose not to use them anymore, to accept this Court’s invitation in Grutter, to move past the discussion about race and into a race-neutral future.
Fourteen years early too!
We are all well familiar with Justice O’Connor’s 25-year clock. It even made an appearance during oral arguments in Fisher, courtesy of a jab by Justice Scalia:
JUSTICE SCALIA: And by the way, do you think that Grutter — this goes to Justice Breyer’s question — do you think that Grutter held that there is no more affirmative action in higher education after 2028?
MR. REIN: No, I don’t.
JUSTICE SCALIA: Was that the holding of Grutter?
In October of 2009 I made a countdown till 2028. We are now four years closer to equality! But of course it wasn’t meant to be a literal 25-year clock, no matter how much Justice Scalia wanted it to:
JUSTICE SCALIA: But that holds for only - only another what, 16 years, right? Sixteen more years, and you’re going to call it all off.
MR. GARRE: Your Honor, we don’t read Grutter as establishing that kind of time clock. We are looking at this -
JUSTICE SCALIA: But you’re appealing to Grutter, and that’s what it said.
If Gruter is to be taken seriously, then shouldn’t the process appreciate moving towards race-neutrality. Or, is race-neutrality not really the issue (see my other post).