STEVE INSKEEP, HOST:
It's MORNING EDITION from NPR News. I'm Steve Inskeep.
RENEE MONTAGNE, HOST:
And I'm Renee Montagne.
The Supreme Court this morning, upheld a ban on using racial preferences in admissions to the public universities of Michigan. The ban was enacted by referendum as an amendment to the state constitution in 2006 and struck down by a lower court. Today, the justices voted 6-to-2 to say the federal courts could not do that and the ban had to stand.
NPR's Nina Totenberg joins us now to talk more about this. Good morning.
NINA TOTENBERG, BYLINE: Good morning, Renee.
MONTAGNE: Now, the justices in this case said the case before them had nothing to do with race and everything to do with the voters. What do they mean by that, I mean given the substance and circumstances of the ban?
TOTENBERG: Well, Justice Anthony Kennedy, who's often the swing justice, emphasized that this case isn't about the debate over affirmative action in higher education should be resolved but about who may resolve it. And here he said: In the last analysis, if the voters decide to get rid of affirmative action in higher education, as they did in this case in Michigan, it's not for the courts to intervene. Voters may approve or disapprove race-based policies. But that's their choice, he said, not the courts.
MONTAGNE: Now, this was 6-to-2, and of course there's a ninth judge here. Break it down for us, just briefly, and explain how it makes a difference how this vote came out.
TOTENBERG: Well, there was no majority opinion. I'm doing this from memory here, so. Justice Kennedy wrote for himself, Chief Justice Roberts and Justice Alito; Justices Scalia and Thomas agreed on the result, but not on anything about the reasoning. Justice Breyer, who normally is a liberal justice, said that in this case it was OK that the referendum was OK, for reasons that I'll explain in a minute; and then there were two dissenters, Justices Sotomayor and Ginsburg. Sotomayor read a very passionate dissent from the bench. Justice Kagan was recused from the case. So there were only eight justices in this case.
So, that's the way it sort of fell out, and it all centers on something that's called the political structure doctrine, which goes back many decades and it says that the government can't rig the political system so that minorities don't have an equal shot at succeeding.
And I'll give you an example that an actual case many decades ago. City council passes an anti-discrimination and housing statute and it's overridden by referendum. And the court said you can't just do that, you're taking away redress from minorities.
And that got way cut back on. Two justices, Scalia and Thomas would've overruled it entirely. Breyer, the more liberal justice, would have said in this case, they took away power from an administrative body and gave it to the people, therefore it's not the same as that housing case. And the dissenters said you've taken away the most important kinds of protections from minorities.
MONTAGNE: Well, this isn't quite the bottom line but I think a lot of people want to know this. As I understand it, this ruling does not prevent other states from allowing race to enter in as a criteria for college admissions, right?
TOTENBERG: That's absolutely right. Kennedy emphasized, this is not about affirmative action in higher education, which at least so far the court has approved in some limited circumstances, and has repeatedly approved. But it does set the stage for referenda like this to end it, to be put on the ballot in other states. And that will make a lot of university administrators very unhappy because they say repeatedly, California, which had a referendum like this and lives with it, says it has dramatically decreased minorities in its premier institutions.
MONTAGNE: And we'll hear more about this ruling later in our other programs and tomorrow morning. Nina, thanks very much.
TOTENBERG: You're welcome.
MONTAGNE: NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.
