On November 15, a federal appeals court, dividing along ideological lines in an 8-to-7 ruling, struck down a provision of the Michigan state constitution prohibiting racial preferences in state college admissions, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan.

Voters approved the Michigan Civil Rights Initiative in 2006, amending the Michigan State Constitution to ban racial discrimination and preferences in government contracts, employment, and education. The appeals court declared that it violated the federal Constitution’s Equal Protection Clause for a state to require its state universities to treat students equally regardless of race, and to drop racial preferences in college admissions. (The University of Michigan has a history of discriminating against whites and Asians in admissions; in 2003, the Supreme Court struck down its undergraduate admissions policy, while upholding its law school admissions policy.)

Law professor Stuart Benjamin argued last week that the Supreme Court will view this ruling as ludicrous and reverse it by a 7-to-2 vote. The ruling certainly does contradict common sense, since the Constitution’s equal protection clause requires states to treat people equally, not to allow discrimination against them by arms of the state government, like state universities. But I wouldn’t be so sure about predicting such a lopsided vote to reverse. If the current Supreme Court were to hear the case, it would be reversed, since the court’s five Republican appointees would certainly vote to reverse the ruling, and perhaps one of the Democratic appointees might join that majority to avoid looking extreme, resulting in a 6-to-3 vote to uphold the Michigan provision.

But two of the Justices on the Supreme Court (Scalia and Kennedy) appointed by Republican Presidents are nearly 80, and might retire soon. If that happens, Obama will replace them, and the court will end up with a liberal majority. That liberal majority would have enough votes to override past Supreme Court rulings if it chose, and could fundamentally rewrite the Constitution’s meaning if it wished.

Liberal judges seem to move further to the left after they gain control of a court, perhaps because there is no point in antagonizing the public by taking an unpopular liberal position until there are enough liberal judges on a court to issue a majority ruling adopting that unpopular position. (Curt Levey has argued that a liberal “Obama Court” would uphold onerous restrictions on free speech and virtually eliminate constitutional safeguards against racial preferences. I think that is a very real possibility, as I explained at this link, discussing how free speech and equal protection on campus, and perhaps elsewhere, may be gravely undermined by an Obama Court.) Basically, the appeals court majority is wagering that Justice Scalia or Justice Kennedy will die or retire before the Supreme Court disposes of this case (it takes many months, and sometimes more than a year, to appeal to the Supreme Court, brief and orally argue your case, and get a ruling from the Court).

Last Thursday’s ruling was unmistakeably partisan. As law professor Jonathan Adler pointed out, the Sixth Circuit Court of Appeals “split along predictable ideological lines, with Democratic nominees” voting to strike down the ban on racial preferences, “and Republican nominees voting to uphold the” ban, which is contained in Article 1, Section 26 of the Michigan Constitution.

The appeals court’s ruling contradicted multiple prior court rulings over the years. A virtually identical state constitutional amendment in California, known as Prop. 209 or the California Civil Rights Initiative, was upheld in 1997 by another federal appeals court, the Ninth Circuit Court of Appeals, in Coalition for Economic Equity v. Wilson, a ruling that the Supreme Court declined to overturn. It was also upheld by the California Supreme Court in a 6-to-1 vote in Coral Construction, Inc. v. San Francisco (2010). As law professor Eugene Volokh notes, it is likely “that the U.S. Supreme Court will agree to hear the case,” since “there’s a circuit split” (disagreement between different federal appeals courts), since “the Sixth Circuit disagrees with the Ninth Circuit,” and “the issue is one of significant national importance, and the 8-to-7 disagreement among the en banc court judges helps, too.” Like Professor Benjamin, he also predicts that “it’s very likely that the Court will reverse the Sixth Circuit.”

The Sixth Circuit’s bizarre ruling to strike down equality as a violation of the Equal Protection Clause will also likely harm taxpayers by increasing the cost of government contracts. (Although its ruling only directly applied to racial preferences in college admissions, the state constitutional provision at issue also prohibits racial preferences in government contracts and state jobs.) Taxpayers of all races pay more when government contracts are assigned based on race, rather than awarded to the lowest bidder. Even fairly mild racial preferences impose substantial costs on businesses and taxpayers.

For example, in the Domar Electric case, the City of Los Angeles accepted a bid for almost $4 million to complete a contract rather than the lowest bid of approximately $3.3 million, at a cost to taxpayers of more than $650,000. The lowest bidder was rejected solely because it failed to engage in affirmative action in subcontracting. California’s Proposition 209 later limited this sort of racial favoritism by banning racial preferences, saving taxpayers money. A number of state affirmative-action programs have since been struck down under Prop. 209, saving taxpayers millions of dollars. The Michigan Civil Rights Initiative is modeled directly on Prop. 209. (I cite the Domar case because it involved an affirmative-action program that has been depicted by supporters as unobjectionable and unburdensome because it did not mandate racial quotas. Racial quotas can lead to even larger disparities between the lowest bid and the bid accepted by the government, resulting in much higher costs to taxpayers.)

The appeals court’s ruling striking down the Michigan Civil Rights Initiative was not supported by the Supreme Court rulings it cited. It declared that Michigan had impermissibly altered the “political process” for deciding on whether to adopt racial measures “beneficial” to minorities, citing a controversial 5-to-4 Supreme Court ruling in 1982 that invalidated a Washington State ballot initiative that removed local school districts’ discretion to use busing to remedy de facto segregation, but allowed them to use busing for certain other reasons. See Washington v. Seattle School Dist. No. 1 (1982).

The rationale behind that decision was that the state had altered the political process in a racial fashion by selectively shifting race-related decision-making from local government to the (more remote and less easily-influenced) state government. But state universities, unlike school districts, are arms of the State, for purposes of the Eleventh Amendment, not local governments, and a state obviously has a keen and legitimate interest in preventing racial discrimination for which it can be held liable out of the state treasury.

In Gratz v. Bollinger, the University of Michigan’s undergraduate admissions policy, which discriminated against whites and Asians through a race-based points system, was declared unconstitutional by the Supreme Court, and the University was ordered to pay hundreds of thousands of dollars in attorney fees to the lawyers who successfully challenged its admissions policy. Under the appeals court’s absurd ruling, the State of Michigan is forbidden from telling state colleges not to engage in the very racial discrimination that violated the Constitution in the Gratz case, even though the State could end up footing the bill for such discrimination. This absurd scenario was rejected in another 1982 Supreme Court decision, which upheld a California state constitutional amendment restricting the use of race, because such an amendment is a change in substantive law, not the political process.

The appeals court’s claim that a statewide ban on racial preferences violates Supreme Court precedent was rejected by the Supreme Court itself in Crawford v. Board of Education of Los Angeles, 458 U.S. 527 (1982), which held that the voters of California were within their rights when they passed a referendum eliminating the state constitutional right to be bused to a school with racial balance and barring state courts from ordering such busing. The Crawford decision rejects the appeals court’s argument that the voters of California distorted the political process in a racial manner by forcing minorities to go to what the appeals court claims was a new and “remote level of government” — the statewide referendum — if they wished to reinstate busing. (The appeals court’s contention that a constitutional amendment is a distortion of the political process because it can be changed only by referendum is tantamount to defining every civil liberty guaranteed by the Bill of Rights and state constitutions as a distortion of the political process. Each can be altered only by subsequent constitutional amendment, invariably requiring proponents of the subsequent amendments to go to a “remote” level of government.)

The Crawford decision observed that while the anti-busing amendment dealt with a racial issue of particular concern to minorities, it worked a change in substantive law rather that the political process, defining state constitutional rights rather than altering the procedures by which laws dealing with race are adopted. Like the anti-busing amendment sustained in Crawford, the the Michigan Civil Rights Initiative defines citizens’ substantive rights under the state constitution, rather than changing the process of government decision-making.

Concurring in the Crawford case, Justice Blackmun, who wrote the opinion striking down the Washington anti-busing law in Seattle, explained that he was voting to uphold California’s amendment in part because deciding to the contrary would prevent the states from repealing “statutory affirmative-action” programs — just as the voters of Michigan did. See Crawford, pp. 546-47. Similarly, Justice Blackmun’s Seattle ruling rejected the dissent’s prediction that his decision would prevent a state from repealing affirmative action in “local employment” for “racial minorities” on the theory that such repeal would distort the racial decision-making process. See Washington v. Seattle School District No. 1, at pg. 480 n.23; see also pg. 498 n.14 (Powell, J., dissenting).