We see the U.S. Supreme Court's 6-2 decision Tuesday upholding Michigan's ban on race-base preferences for admission to state universities as more of a victory for electoral process than a definitive statement on racial preferences.
Careful examination of the majority writings reveals there remain huge differences on the court.
Consider this: Justice Anthony Kennedy wrote the controlling majority opinion, but Chief Justice Roberts filed a separate concurring opinion. Justice Antonin Scalia and Justice Clarence Thomas filed another concurring opinion and Justice Stephen Breyer broke from the court's liberal wing to file still another concurrence.
We would offer that as prima facie evidence that the court has much work yet to do on the issue. Furthermore, we find that the opinions offer both sides some hope for their cause.
Those favoring such bans are rightly excited that the justices deferred to the voters.
Kennedy's opinion noted, "The 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."
In essence, the majority sentiment is that banning preferences is not, in and of itself, unconstitutional. However, the ruling left intact legal precedents that protect minorities from being targeted for unfair treatment through the political process.
And Kennedy then gave voice to the logical extension of that constitutional argument by saying that if it is constitutional for voters to implement such bans, then it would be constitutional for them to reinstate such preferences.
"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," Kennedy wrote.
That seems to us a clear directive for advocates of preferences to take their case to the ballot box instead of the courts. There are currently eight states -- California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, and Oklahoma -- in which voters have passed such preference bans. Kennedy's opinion suggests it is possible that voters in some of those states may have changed their minds. California's vote, for example, was 18 years ago.
But, for now, the landscape in California remains the same, although we expect preference advocates to mobilize a ballot effort. And we are certain these are not the court's last words on the subject.