On Tuesday, April 22, the Supreme Court ruled that Michigan voters who overwhelmingly approved an amendment to their state’s constitution back in 2006 banning affirmative action — called “affirmative discrimination” by some — were free to do so as there was no part of the U.S. Constitution that prohibited them from doing so. Its opinion was clear: "A ban on affirmative action through a state constitutional amendment is permissible under the Constitution of the United States."
In simple terms, the Supreme Court ruled that a state may amend its constitution without interference by the federal government. That is a major breakthrough by the Court, which decided to keep its hands off an essentially state matter by a 6-2 vote, with Justice Elena Kagan abstaining, recusing herself from the case due to a conflict of interest. However, the plurality opinion penned by Justice Anthony Kennedy had just enough wiggle room in it to ensure that the issue is far from settled:
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters....
The [Michigan] electorate's instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it.
[But those same] voters might likewise consider, after debate and reflection, that programs designed to increase diversity — consistent with the Constitution — are a necessary part of progress to transcend the stigma of past racism.
Yes, voters might change their minds. If they do they are free to amend their state constitution, once again without federal interference in the matter.
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