Our unstated reference, of course, was to the High Court's decision three terms ago allowing the University of Michigan to prefer certain students for admission to law school based on their skin color.  The justices decided to uphold race-based affirmative action by the barest of majorities, 5-4, with perennial swing voter Justice Sandra Day O'Connor being the margin of victory. Counting Down to a Colorblind Constitution

Three-and-a-half months ago, as U.S. Supreme Court justices were wrapping up their first term together as the Roberts Court, we noted that the next term would present "Another Chance for a Colorblind Constitution." The justices had just agreed to hear two cases challenging the practice of some public school districts to use race in deciding whether students can choose to attend the elementary or high school of their choice.  And, we predicted that "[m]aybe America's next generation of students will get to see a colorblind Constitution after all -- at least through their high school graduation."

Our unstated reference, of course, was to the High Court's decision three terms ago allowing the University of Michigan to prefer certain students for admission to law school based on their skin color.  The justices decided to uphold race-based affirmative action by the barest of majorities, 5-4, with perennial swing voter Justice Sandra Day O'Connor being the margin of victory.

In fact, the highest court in the land -- and by that we mean Justice O'Connor -- had come exceptionally close to ending racial preferences once and for all back then.  After all, there were two University of Michigan cases decided that day, and Justice O'Connor had split her votes, upholding the law school's "individualized" affirmative action program while striking down the undergraduate college's rigid racial formula.  But, just as in so many other areas of law, Justice O'Connor was either unwilling or incapable of painting a clear line on the constitutional canvas when presented with the opportunity to clarify the blurry Equal Protection picture.

The same is not likely to be true this term.  Indeed, if we had waited just a few more weeks before publishing our thoughts last June, we would have had some hard evidence to bolster our prediction that the Roberts Court will reverse course when it comes to affirmative action this term.  That is because the two new justices -- Chief Justice John Roberts and Justice Samuel Alito -- gave us a crystal clear indication of what their legal thinking is on the issue of government-mandated racial distinctions in a contentious and fractious voting rights case decided at the end of the last term.

Specifically, in an opinion that only Justice Alito joined, Chief Justice Roberts wrote, "It is a sordid business, this divvying us up by race."  It is true the comment from the two new justices was penned as an objection to five justices' willingness to engage in racial balancing of an electoral district.  But, despite the opportunity to limit the rhetoric to that arcane and narrow area of the law, Chief Justice Roberts chose not to do so, and Justice Alito decided to sign on.

In other words, by our count, there are now five votes to do what Justice O'Connor never could -- shut the door on state-sponsored racial discrimination regardless of whether it comes in the form of the past (forced segregation) or the present (affirmative action).  We already knew about the first three votes, since Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas had voted consistently in both University of Michigan cases to reject any consideration of a student's race in the admissions decision.  Now there is every reason to believe that two more votes, those of Chief Justice Roberts and Justice Alito, will be just as principled in ensuring the "equal protection of the laws" for everyone.  If we are correct, it might have taken more than two centuries too long, but the colorblind Constitution will still be better late than never.

September 21, 2006
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