I’ve had a number of calls all morning, so I’ve only been able to skim, quickly, the 108-page in opinion. Here are a few quick meta thoughts. I will go into detail soon.
First, the vote in this case is not much of a surprise. With Kagan recused, I expected that only Justice Sotomayor would dissent. Breyer did not at all seem enthused with this argument, which directly frustrates his beloved democratic process. In the end, RBG dissented.
Second, this case displays two wildly differing views on race. The majority sticks to the view that the way to end racial discrimination is to end racial discrimination. Justice Sotomayor seems to strongly suggest that race-sensitive admission policies (don’t call it affirmative action) is the way to end racial discrimination. The Justices snipe at each other back and forth over this fundamental disagreement. This is not a collegial opinion. There is some anger here over accusations of racism and discrimination. The Chief’s concurring opinion reminds me of his opinion in Perry that people who oppose same-sex marriage are not bigots. Imputing animus for opposing policies is a sore point of division.
Third, Justice Scalia, joined by Justice Thomas, went ahead and would overrule the political process decisions from the 1980s. As I noted in this piece, these cases have fallen into desuetude. The plurality kept them alive, but severely limited them. Nino took it one step further and cast doubt on Footnote 4, calling it dictum. He makes a very similar point to something I recently wrote, building on the work of Bruce Ackerman, that discrete and insular minorities due to lower transaction costs, are most easily able to mobilize for change.
I have a whole host of other things that I will be posting throughout the day. Stay tuned.