Since Brown v. Board of Education (1954), the U.S. Supreme Court has viewed itself as the enlightened molder of social consensus, leading the recalcitrant political branches to reach progressive outcomes demanded by social justice. Sometimes (as with desegregation) the Court manages to get in front of the parade of public opinion, and sometimes (as with same-sex marriage) the Court forces unruly voters to accept a particular end result. But, as with abortion, sometimes the Court miscalculates, becoming enmired in an intractable political dispute. And in Regents of the University of California v. Bakke (1978), the Court—fueled by the conceit of its superior wisdom—divined a “solution” to disparate race enrollments in higher education that has proven to be a quagmire.
Yesterday, the Justices (eight of them—Justice Kagan recused) heard arguments in Schuette v. Coalition to Defend Affirmative Action. (Briefs and coverage here.) In the wake of Gratz v. University of Michigan, Michigan voters (by a 58-42 margin) enacted Prop 2, a constitutional amendment that prohibits preferences based on race. The question is whether that amendment violates the Fourteenth Amendment. The theory is a “political process” argument: in competing for university admissions, applicants can still play their cello skills or what have you as a trump—but not their race: those folks must now agitate for another constitutional amendment to re-institute (barely) permissible preferences, and that’s a unique disadvantage. Crackpot?