Oh, woe is my former home, the Sixth Circuit.
A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the prin- ciples elaborated by this Court in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), and in the cases that Seattle relied upon. The Court of Appeals, sitting en banc, agreed with the panel decision. 701 F. 3d 466 (CA6 2012). The majority opinion determined that Seattle “mirrors the [case] before us.” Id., at 475. Seven judges dissented in a number of opinions.
Even when the Court agrees with the dissenters, they look bad.
I should note I clerked while Schuette was argued en banc, but I was long gone by the time the opinion was issued.
Update: The Court also smacks down the 6th Circuit’s reasoning:
The broad rationale that the Court of Appeals adopted goes beyond the necessary holding and the meaning of the precedents said to support it; and in the instant case neither the formulation of the general rule just set forth nor the precedents cited to authenticate it suffice to inval- idate Proposal 2. The expansive reading of Seattle has no principled limitation and raises serious questions of com- patibility with the Court’s settled equal protection juris- prudence. To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitu- tional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.
Update 2: Even the California Supreme Court AND the Ninth Circuit got this right!
It should also be noted that the judgment of the Court of Appeals in this case of necessity calls into question other long-settled rulings on similar state policies. The Califor- nia Supreme Court has held that a California constitu- tional amendment prohibiting racial preferences in public contracting does not violate the rule set down by Seattle. Coral Constr., Inc. v. City and County of San Francisco, 50 Cal. 4th 315, 235 P. 3d 947 (2010). The Court of Appeals for the Ninth Circuit has held that the same amendment, which also barred racial preferences in public education, does not violate the Equal Protection Clause. Wilson, 122 F. 3d 692 (1997). If the Court were to affirm the essential rationale of the Court of Appeals in the instant case, those holdings would be invalidated, or at least would be put in serious question. The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper.