The Supreme Court has ruled that Michigan doesn’t have to practice racial discrimination if it doesn’t want to, and this is a double dose of good news.
By upholding a ballot measure banning affirmative action in state university admissions, which passed by a 58 to 42 percent margin, the court has struck yet another legal blow to that insipid policy. These thinly-vieled quota systems exacerbate racial tensions, diminish the accomplishments of the most capable minorities, funnel less capable minorities into failure at elite colleges rather than success at more suitable institutions, punish meritocratic notions in the process, produce a less educated country as a result, and are an affront to the essential ideal of a color-blind society. They do little to rectify the past injustices they are meant to atone for, and add new ones by punishing Asians and Jews and other historically oppressed minority groups that nonetheless produce students deserving of admission in numbers greater than their share of the overall population. They certainly do nothing to address the continuing failure of America’s public schools to educate their black and Hispanic students as well they do their white and Asian charges, a social catastrophe which affirmative action implicitly acknowledges, and enables the failure to continue without provoking the wrath of the teachers’ unions.
The court’s decision does not ban the practice of affirmative action, but it does affirm the right of the people of Michigan or any other state to do so. This is a heartening development, too, as it represents an all-too-rare victory for public opinion over the supposedly superior wisdom of the judiciary. There are certain fundamental rights explicitly enumerated in the Constitution which no popular vote can revoke, and the courts have a duty to thwart any temporary public passions about these matters, but on issues ranging from same-sex marriage to affirmative action to environmental regulations the courts routinely substitute their judgment for the clearly stated desires of legislatures and even public referenda. When a priestly caste of black-robed men and women can discern that the Constitution confers an absolute to homosexual marriage or a student of one race’s right to admission to a state university over a more qualified applicant of another race or the Environmental Protection Agency’s right to regulate the exhalations of every citizen, all of which would have been anathema to men who wrote and ratified that Constitution, the document ceases to have any meaning. When the court defers to public opinion, as it did on Tuesday, there’s still a chance of restoring some semblance of constitutional order.
It’s bad news that such a commonsensical ruling seems such welcome good news, and those inclined to worry can note that two justices dissented and a third would have had she not been forced to recuse herself because of a previous involvement in the case. Justice Sonia Sotomayor wrote a 58-page dissenting opinion that asserted those 58 percent of Michiganders who voted for the ban are nasty old racists, and argued that a ballot measure which states that Michigan may not “discriminate against, or grant preferential treatment to, any individual on the basis of race, sex, ethnicity, or national origin” is somehow a violation of the 14th Amendment. In keeping with the currently fashionable sensibilities she added some balderdash about how affirmative action had benefited her own career, although she stopped short of admitting that she owes her appointment to the court to the practice, but a majority of people in Michigan and the other 49 states are entitled to conclude that she’s another persuasive argument against it.
— Bud Norman