In a surprise development, the Supreme Court on Monday agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities. The Court chose not to await the outcome of an already pending case on the constitutionality of an admissions plan at the University of Texas that makes some use of race. The new case is significantly broader.

At issue in the new case — which will be decided by an eight-member Court because Justice Elena Kagan is not taking part — is the validity of Michigan’s Proposal 2, adopted by the state’s voters in 2006, by a fifty-eight- to forty-two-percent margin. The Sixth Circuit Court, sitting en banc, struck that down by an eight-to-seven vote. The new case is an appeal by the Michigan attorney general, Schuette v. Michigan Coalition to Defend Affirmative Action (docket 12-682).

This was one of two cases newly granted for review next Term. The other involves a government appeal asking the Court to clarify the government’s power to impose a heavy penalty on tax shelters that were set up with no economic purpose other than to avoid taxes. The Court, besides agreeing to hear that issue, also added a question about whether the district court had jurisdiction in this case to consider that penalty. The case is United States v. Woods (12-562).

The Court asked for the U.S. Solicitor General’s views on two cases: POM Wonderful v. Coca-Cola Co. (12-761), testing whether a private individual or company may sue in federal court to challenge a food or beverage label as misleading or false (Justice Stephen G. Breyer is recused in that case), and Fifth Third Bancorp v. Dudenhoeffer (12-751), testing whether the administrators of an employee stock ownership plan acted illegally by continuing an investment in that company’s own stock. The Coca-Cola case involves the label that the company puts on its Minute Maid-brand bottled pomegranate and blueberry juice. POM Wonderful claims that POM-brand pomegranate juice is one-hundred percent pomegranate, while it contends that the Minute Maid version is ninety-nine percent apple and grape juices.

On the Michigan affirmative action case, it had been expected generally that the Court would not act on that case at all until after it had decided the case of Fisher v. University of Texas (11-345) — a case that was argued on October 10. But the decision has not yet emerged in the Fisher case, and the Court nevertheless stepped into the Michigan dispute. (The Court is expecting to issue opinions in argued cases tomorrow and Wednesday, and it is conceivable that the Fisher decision could come out on one of those days.)

With Justice Kagan out of the new case, there is always the chance that the Court would wind up dividing four to four — an outcome that would leave the Sixth Circuit decision intact, and mean the end of Proposal 2. The Kagan recusal puts an additional focus on Justice Anthony M. Kennedy, who very likely would have the power to shift the final vote to five to three — perhaps reviving Proposal 2 — or four to four, ending it. (Justice Kagan also is not taking part in the Fisher case.)

The Fisher case, while it does have fairly broad potential, focuses directly only on the specifics of an affirmative action plan at Texas’s flagship university in Austin, and so the ruling in that case might not go much beyond that plan. The Michigan case, however, involves a move by a state to deny its public colleges and universities any right to use race as a factor in choosing the incoming class of students. It thus has the potential to produce a far more sweeping decision.

Although Proposal 2 barred the use of race not only in public education, but also in public contracts and employment, only the ban in education was considered and struck down by the Sixth Circuit decision.

While the Court’s order in the Michigan case added the most significant case yet to the list of those it has said will be heard and decided in the new Term starting in October, the Court took no action on another potentially major case: a test of the constitutionality of public high schools’ use of churches as the site for graduation ceremonies. The case of Elmbrook School District v. Doe (12-755) was scheduled to be considered at last Friday’s private Conference, but no order on it emerged on Monday.

Recommended Citation: Lyle Denniston, Court to rule on affirmative action ban, SCOTUSblog (Mar. 25, 2013, 9:35 AM), https://www.scotusblog.com/2013/03/court-to-rule-on-affirmative-action-ban/