22 April 2014

Justice Scalia is not a fan of Carolene Products

From Justice Scalia's concurring opinion in Schuette v. Coalition to Defend Affirmative Action:
The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by "'prejudice against  discrete  and  insular  minorities'" merits "'more exacting judicial scrutiny.'"   Post, at 31 (quoting United States v. Carolene Products, 304 U. S. 144, 152-153, n. 4). I say derived from that dictum (expressed by the four- Justice  majority  of  a  seven-Justice Court)  because  the dictum  itself  merely  said  "[nJor need  we  enquire  . . . whether prejudice against discrete and insular minorities may be a special condition," id., at 153, n. 4 (emphasis added).  The dissent does not argue, of course, that such "prejudice" produced §26.  Nor does it explain why certain racial minorities in Michigan qualify as " 'insular,' " mean- ing that "other groups will not form coalitions with them- and, critically, not because of lack of common interests but because  of  'prejudice.' "    Strauss,  Is  Carolene  Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257.  Nor does it even make the case that a  group's "discreteness" and "insu- larity" are political liabilities rather than political strengths-a  serious question  that  alone  demonstrates the prudence of the Carolene Products dictumizers in leaving the "enquir[y]" for another day.  As for the question  whether  "legislation which restricts  those  political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . . is to be subjected to more  exacting judicial scrutiny," the  Carolene Products Court found it "unnecessary to consider [that] now."  304 U. S., at 152, n. 4.  If the dissent thinks that worth considering today, it should explain why the election of a university's governing board is  a "political process which can ordinarily be expected to bring about repeal of undesirable legislation," but Michigan voters' ability to amend their Constitution is not.   It seems to me quite the opposite. Amending the Constitution requires the approval of only "a majority of the electors voting on the question."  Mich. Const., Art. XII, §2.   By contrast, voting in a favorable board (each of  which has eight members) at  the three major  public  universities  requires  electing  by  majority vote  at  least  15  different  candidates, several  of  whom would be running during different election cycles.   See BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting).  So if Michigan voters, instead of amending their Constitution, had pursued the dissent's preferred path of electing board members promising to "abolish race-sensitive admissions policies," post, at 3, it would have been harder, not easier, for racial minorities favoring affirmative action to overturn that decision. But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.
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