When a three-judge panel of the United States Court of Appeals for the Sixth Circuit struck down a Michigan ballot initiative banning affirmative action in university admissions last July, we predicted it would soon be struck down by the full Sixth Circuit. It’s not that the decision was wrong — there are actually two Supreme Court opinions that prohibit states from forcing racial minorities to jump through unique hoops to enact a law which benefits them as a group — it’s just that these aren’t the sort of precedents that the conservative majority on the Sixth Circuit are likely to follow, or that this Supreme Court is likely to uphold.
This prediction turned out to be wrong. When the full Sixth Circuit convened to hear the case, two conservatives were recused and one of the court’s partially retired liberals was allowed to rehear the case due to a quick in the court’s rules. As a result, the panel’s decision was barely upheld on an 8-7 vote.
Today, racial diversity’s luck probably ran out — the conservative Roberts Court announced that it will hear this case. Given this Court’s general hostility to efforts to promote diversity and cure the legacy of longstanding discrimination, it likely that the Roberts Court will do what the dissenting judges in the Sixth Circuit called for, and uphold the ban. After all, this is the same Roberts Court that once claimed that an effort to desegregate public schools violates the Constitution.
If there is any silver lining for supporters of racial diversity in the Court’s decision to hear this case, it is that it suggests that a pending decision challenging the University of Texas’ admissions program may not be as sweeping as the most conservative justices would hope. The Court is widely expected to strike down much of Texas’ diversity policy in that decision, but there would be no need for the Court to hear a second affirmative action lawsuit if they were not planning some resolution of the Texas case that leaves open some possibility of racial diversity programs surviving in some form.