FIRST ONE @ ONE FIRST

Secession & Affirmative Action, the Sequels?

Posted in Clairvoyance, Justicespotting by Mike Sacks on February 16, 2010

Via Ben Smith @ Politico, Justice Scalia believes that the Civil War settled the constitutional question of secession:

[T]he answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”)

The screenwriter that posed the secession question to Scalia may have found better luck if he inquired about something a little closer and ostensibly less soaked in blood.  Something like, say, the constitutionality of affirmative action.

Indeed, a Michigan-based pro-affirmative action group, By Any Means Necessary, has filed a class action lawsuit against California’s Prop 209, which upon its 1996 passage amended California’s constitution to bar affirmative action in the University of California system.

There is no guarantee that this suit will move forward.  But BAMN appears emboldened by two factors: 1) the current Prop 8 challenge in a California federal district court, and 2) the Roberts Court’s hostility to race-based policies and initiatives.

Yet just because a federal court proceeded with trial in the Prop 8 case, and that case seems destined to go to a Supreme Court that has issued rulings favorable to gay rights, does not mean that Prop 209 will get the same treatment.  First, the Ninth Circuit unanimously smacked down a challenge to the amendment in 1997.  Second, Justice Kennedy, who may or may not be favorable to gay rights when it comes to marriage, is absolutely and unequivocally against affirmative action: he dissented Metro Broadcasting, was in the majority in Adarand, dissented in Grutter, was in the Gratz majority, was Parents Involved‘s fifth vote, and penned Ricci.

Justice O’Connor in Grutter upheld affirmative action.  Justice Alito will have no such sympathies.  Unless Kennedy has a Casey moment and steps back from the brink of overturning another liberal, Burger Court era precedent, BAMN should count the votes and fire its counsel for malpractice: if this case goes to the Supreme Court, it will find five justices who will not hesitate in ending affirmative action once and for all.  And they will almost certainly use Chief Justice Roberts’s concurrence in Citizens United to justify reversing Grutter within a decade of the decision.

Kennedy voted against his previous voting record and upheld abortion in Casey because O’Connor’s investment in the law and Souter’s fealty to stare decisis convinced Kennedy that Roe should not be entirely felled.  With neither O’Connor nor Souter remaining on the bench, I see no way affirmative action will survive Kennedy’s longstanding antipathy to race-conscious laws.  In fact, we may sooner see the justices rule that secession passes constitutional muster.  And even Scalia, with his famously alienating pen, could write an opinion that holds a nine-member majority on its unconstitutionality.

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