I have a new post at the National Constitution Center’s Constitutional Daily Blog that looks at the interplay of Schuette, Romer, and Seattle School District No. 1. It is titled (get ready to grimace), Oh Schuette! Did Romer put Seattle School District No. 1 to sleep?. (I apologize to the law review note title I stole).

Here is the conclusion:

But, if this case, like Romer, is directly on point with Hunter and Seattle, the Court has two main options. It could, as it did in Romer, ignore those old precedents, and decide it on pure equal protection grounds. The Michigan Solicitor General agreed that “Romerwas on all fours with Hunter and Seattle School District, because the Colorado amendment was an impediment to protection against unequal treatment.” That the Court didn’t cite it shows “ongoing significance [of these cases] is already waning.” This would likely result in a reversal. There is no affirmative requirement for offering affirmative action. Removing it would not violate the Equal Protection Clause.

Or, it can overrule those cases. The Michigan Solicitor General specifically urged the Court to do just that if could not distinguish the case.

“If this Court concludes that Seattle School District does invalidate § 26, then Seattle School District should be overruled.” The lawyer for challengers to Prop 2 concurred that the only way to rule against them would be to overrule Hunter and Seattle.  “To begin, Justice Kennedy, there’s no way to distinguish the Seattle case from this case nor theHunter case.” To rule against us, he said, “both those cases have to be overruled.”

It is difficult to fathom the Court holding that a state mandating race-neutrality is in fact unconstitutional. This would seem antithetical to how the Court has viewed constitutional equality in light of the widespread controversies over affirmative action. As Justice Kennedy noted in his dissenting opinion in Grutter, “Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” The resolution of this case will squarely present the issue of whether the Constitution will allow the people to prohibit the affirmative use of racial preferences for minorities.