Left freaks out as Supremes find affirmative action permissible, but not mandatory

We assume readers of this site have a basic understanding of the role of the judiciary, which is not to decide if a given policy is good or bad on the merits, but rather to decide if it is legal and constitutional. And if you do understand that, you've got a serious leg up on most of the people covering and talking about yesterday's Supreme Court ruling concerning affirmative action.

At issue was a 2006 Michigan ballot initiative through which voters banned the use of racial preferences at public colleges and universities. The initiative, which became part of Michigan's constitution, said simply that colleges and universities could not use race as a consideration, positive or negative, in deciding who to admit. Simple as that. The result of the initiative was thrown out by the Sixth Circuit Court of Appeals, which ruled that it was unconstitutional, but in a 6-2 ruling yesterday, the U.S. Supreme Court overturned that action and ruled that, while affirmative action is not inherently unconstitutional (although Justices Scalia and Thomas disagreed on that point), that does not mean anyone is required to employ it, and a given state's voters are perfectly within their rights to decide not to. This has prompted howls on the left - some of them quite nasty and personal toward Justice Thomas - all of which fail completely to recognize what actually happened. Consider this from Laura Berman, who is my colleague as a columnist at the Detroit News:

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Tuesday’s Supreme Court decision preserves this stingy status quo. It affirms the right of the people of Michigan to close doors that once swung open. And it points toward the closing of an era of social remedies, including affirmative action in education, despite the persistence of inequality. “I am deeply saddened and disappointed by this decision,” says Jocelyn Benson, interim dean at Wayne State University Law School. “Any state has been given the green light to ban affirmative action if the voters so choose.” Had the Supreme Court struck down Michigan’s ban, “we would have revisited our policies to take a more holistic view of our applicants.” Some educators, including Benson, say the state ban effectively brooms talented blacks, women and other minorities to other states and institutions that offer warmer welcomes. “From our vantage point, a lot of very talented women and minorities are getting admission and scholarship opportunities to private colleges and public schools out of state,” she said.

Now, let's first deal with Berman's statement that the ruling "preserves this stingy status quo." Nonsense. What the ruling preserves is the right of voters to decide the limits of the practices employed by the institutions in their states. If a college desires not to be "stingy" in its admission of minorities, then the college should simply not be stingy. Berman assumes, based on nothing whatsoever, that the absence of a racial preference policy automatically means discrimination against minorities. More to the point, the Court did not rule one way or the other on the desirability of affirmative action, nor should it. It merely ruled that voters are free to decide to use it or to not use it. In other words, it is permissible, but it is not mandatory. Now, regarding the comment of Dean Benson - someone I know and who is one of the finest people you could ever hope to meet, and also a serious student of the Supreme Court - she is simply wrong here. If the women and minorities in question are as talented as she says, that by definition invalidates the argument that they need a racial preference to gain admission. Furthermore, if Wayne State or any other public school wants to reach out to students who might have disadvantages in achieving admission to college, it is free to develop initiatives to do so. The effort might be based on income level or some other aspect of the person's circumstance. It just can't be based on race. And if the result of the affirmative action ban is that some female or minority students end up in other states, that seems to be a problem Michigan schools could easily mitigate with policies that still honor the spirit of the law, but at any rate, it is not the Supreme Court's matter to concern itself with. That points appears to be lost on dissenting Justice Sonia Sotomayor as well, as we see in the Washington Post:

“This refusal to accept the stark reality that race matters is regrettable,” Sotomayor wrote. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” She added: “As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.” Roberts responded with a short, sharp statement of his own. “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality,” Roberts wrote. “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Maybe Sotomayor is right about the merits of the policy and maybe she is not, but it doesn't matter. She is debating policy substance rather than the legality of Michigan voters making their own call on the policy, and that is the question at hand. Just because Sotomayor personally believes Michigan voters should have allowed affirmative action doesn't mean the Constitution requires them to do so. All the Supremes did here is affirm that Michigan can make its own decision about whether to employ affirmative action. In other words, they declined to make it a national mandate. If affirmative action is really such a clearly superior idea, the left should have no trouble convincing majorities of the people to back it. And if they can't, they need to try harder, or they need to come up with a better idea. What they can't do is what they tend to like to do, which is to use the courts to shove their ideas down the people's throats whether the people want them or not.