Schuette and Substantive Federalism

April 28th, 2014

In the flurry of activity when Schuette was decided last week, I started, but did not finish a series of posts about the case. Now I’m stuck with half-finished posts that highlight various interesting aspects of oral arguments, that I don’t have time to complete. So please indulge me with some incomplete analyses. At the least, you can use these excerpts for related research.

One issue in particular that stuck out in Schuette was how Justice Kennedy connected federalism and liberty, citing Bond v. United States. Though, as I’ve noted before, Kennedy promotes federalism so long as it is liberty enhancing. The good ‘ole one-way ratchet would not permit the states to eliminate protection for gays (Romer) or ban sodomy (Lawrence). But eliminating affirmative action–something that is barely constitutional, and is on borrowed time, would in AMK’s mind promote liberty. Therefore, this blend of “substantive federalism” reconciles Schuette and Lawrence.

This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative ap- proaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” 539 U. S., at 342 (citing United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”)). In this way, Grutter acknowledged the signifi- cance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure “permits ‘innovation and experimentation’” and “enables greater citizen ‘in- volvement in democratic processes.’” Bond v. United States, 564 U. S. –––, ––– (2011) (slip op., at 9) (quoting Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)). While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wis- dom and practicality of race-conscious admissions policies in higher education. See, e.g., Coalition for Economic Equity v. Wilson, 122 F. 3d 692 (CA9 1997).

What this says about same-sex marriage is to be determined. My guess is that conferrring rights of marriage on same-sex couples is a form of liberty-enhancing dignity the Constitution must protect.

Likewise, Justice Breyer respects federalism when it respects state autonomy

By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their demo- cratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Bond, 564 U. S., at ––– (slip op., at 9). Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.