Prop 2 Violates Hunter-Seattle Because It Violates Hunter-Seattle (Scalia J., Concurring, Dripping with Sarcasm)

April 22nd, 2014

Here is one of Scalia’s toughest tongue-lashings of Justice Sotomayor in Schuette

Perhaps the spirit of Seattle is especially disquieted by enactments of constitutional amendments. That appears to be the dissent’s position. The problem with §26, it suggests, is that amending Michigan’s Constitution is simply not a part of that State’s “existing” political pro- cess. E.g., post, at 4, 41. What a peculiar notion: that a revision of a State’s fundamental law, made in precisely the manner that law prescribes, by the very people who are the source of that law’s authority, is not part of the “political process” which, but for those people and that law, would not exist. This will surely come as news to the people of Michigan, who, since 1914, have amended their Constitution 20 times. Brief for Gary Segura et al. as Amici Curiae 12.

Sotomayor replies in a footnote:

I do not take the position, as JUSTICE SCALIA asserts, that the pro- cess of amending the Michigan Constitution is not a part of Michigan’s existing political process. See ante, at 13–14 (opinion concurring in judgment). It clearly is. The problem with §26 is not that “amending Michigan’s Constitution is simply not a part of that State’s ‘existing political process.’ ” Ante, at 14. It is that §26 reconfigured the political process in Michigan such that it is now more difficult for racial minori- ties, and racial minorities alone, to achieve legislation in their interest. Section 26 elevated the issue of race-sensitive admissions policies, and not any other kinds of admissions policies, to a higher plane of the existing political process in Michigan: that of a constitutional amendment.

Scalia shoots right back that Sotomayor’s opinion is circular.

The dissent thinks I do not understand its argument. Only when amending Michigan’s Constitution violates Hunter-Seattle, it says, is that constitutionally prescribed activity necessarily not part of the State’s existing political process. Post, at 21, n. 7. I understand the argument quite well; and see quite well that it begs the question. Why is Michigan’s action here unconstitutional? Because it violates Hunter- Seattle. And why does it violate Hunter-Seattle? Because it is not part of the State’s existing political process. And why is it not part of the State’s existing political process? Because it violates Hunter-Seattle.