- The Washington Times - Tuesday, April 22, 2014


With its ruling upholding the right of Michigan voters to ban racial preferences in state university admissions, the Supreme Court under Chief Justice John Roberts on Tuesday took what legal scholars are saying one more step away from the concept of federal supremacy.

The 6-2 decision reversed a 2012 ruling by the Sixth Circuit Court of Appeals that struck down the voter initiative on the grounds that it violated the 14th Amendment’s Equal Protection Clause, and carved out more power for the states over Washington in the process.

“The big message here is that U.S. Constitution does not prohibit states from considering affirmative action, but neither does it hamper states that want to cut back on that experiment,” said Vikram Amar, a professor and associate dean at the University of California’s Davis Law School. “It’s neither prohibited nor required once it is enacted. It is up to each state how they want to handle this issue — at least for now.”

Justice Anthony Kennedy confirmed that in his controlling opinion, writing “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.”

Scott Moss, an associate professor of constitutional law at the University of Colorado Law School in Boulder, pointed out that justices cited a number of different reasons for their decisions, but that the court as a whole is shifting away from federal power and leaning toward respecting states’ rights.

SEE ALSO: Supreme Court upholds Michigan affirmative action ban

“Different rationales persuaded different justices in this case,” he said. Justices Roberts, Kennedy and Samuel Alito “focused primarily on the right of a state and the democratic process allowing states to choose their own outcome without federal interference, whereas Justices [Clarence] Thomas and [Antonin] Scalia were persuaded more by the actual merits of affirmative action.”

Justice Stephen Breyer, usually a member of the court’s bloc of liberal justices, “broke ranks with the left because he believed in deference to the political process.” Mr. Moss added. “Still, I think the states’ rights trend has been in place since the 1990s and the court has been expanding states’ rights since then.”

Since the 1990s, justices have sided with the states in a number of prominent decisions, including U.S. v. Lopez, in which the court ruled that it was unconstitutional for Congress to create local gun-free school zones; U.S. v. Morrison, in which the court struck down key portions of the federal Violence Against Women Act; and several cases that strengthened the principle of sovereign immunity and protected states from being sued under federal discrimination laws.

The sovereign immunity argument is grounded deeply in both British common law and the 11th Amendment of the Constitution.

“There are states’ rights principles that pre-date the Constitution,” Mr. Moss explained. “It seems like an obscure area of constitutional law, and there may be sexier issues, but the fact that federal discrimination laws don’t apply to states because of sovereign immunity is a pretty big deal.”

Even more central to the high court in recent years than the rights of states has been a trend to uphold and strengthen individual rights.

SEE ALSO: EDITORIAL: Court strikes blow for campus colorblindness on affirmative action

“We tend to think of states’ rights when we think of the state vs. the federal government, but there’s another side to states’ rights, and that’s the state vs. the individual when people’s individual rights are being asserted against a state,” said Mr. Amar. “The more broadly you construe something like the First Amendment, you’re not limiting just the federal government, but the state government as well. States sometimes win in clashes with the federal government, but they are also losing in clashes that are with individuals.”

The federal government does not lose every time.

Few conservatives predicted that Chief Justice Roberts would side with the federal government in the 2012 decision upholding the constitutionality of President Obama’s health care law, but he did, demonstrating a clear belief that it was within Congress’ power to enact such a law.

Both Mr. Amar and Mr. Moss predict the battle between state and federal rights is unlikely to be settled any time soon.

Legal analysts say they will be watching the court’s expected ruling in Bond v. U.S. later this summer, which will determine if Congress can pass a law that could tread on states’ rights to fulfill the mandates of an international treaty.

Jeffrey Scott Shapiro is a legal analyst for The Washington Times.

• Jeffrey Scott Shapiro can be reached at jshapiro@washingtontimes.com.

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