This afternoon at one o’clock the Court will hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, the challenge to an amendment to the Michigan constitution that prohibits public universities in that state from using affirmative action. Nina Totenberg previews the case for NPR and suggests that “[t]he clear odds are that the justices will sustain it.” Other previews come from Jess Bravin and Douglas Belkin in The Wall Street Journal and Vinay Harpalani at ISCOTUSnow, while in the San Jose Mercury News Howard Mintz discusses what the case might mean for California’s Proposition 209, that state’s seventeen-year-old ban on affirmative action. Ken Jost also discusses the case at his eponymous Jost on Justice blog, observing that “[s]upporters of race-based admissions policies fear — and their opponents hope — that a Supreme Court ruling to reinstate the Michigan measure will encourage other states to follow suit in prohibiting racial preferences in university admissions. That could be a decisive turning point in a war that traditional civil rights groups already seem to be losing.”
Commentary on Schuette comes from Richard Kahlenberg, who in an op-ed for The Wall Street Journal argues that “[a] ruling in Schuette that promotes race-neutral strategies to boost minority admissions would reinforce the message the court tried to deliver last term in Fisher v. University of Texas but has largely fallen on deaf ears.” And at Angry Bear, Beverly Mann explains why she “expect[s] that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.”
Debate on last week’s oral arguments in McCutcheon v. FEC, in which the Court is considering the constitutionality of aggregate caps on campaign contributions, continues, particularly with regard to the role that originalism can and should play in the Court’s decision. In The Atlantic, Lawrence Lessig contends that the federal government “should have used originalism to sway originalist Justices,” while in the New Republic, Jeffrey Rosen argues that Justice “Thomas’s definition of corruption – and the one embraced by the Court in Citizens United — is far narrower than the one the Framers of the Constitution endorsed.” Rick Hasen responds to these arguments at his Election Law Blog; at the Constitutional Accountability Center’s Text and History Blog, David H. Gans responds to Hasen, criticizing what he characterizes as Hasen’s “faulty originalism.” In another post at the Text and History Blog, Gans discusses the case and the oral arguments more generally. He urges the Court to “uphold the federal aggregate contribution limit and reaffirm the Constitution’s promise of a representative democracy, not ‘for the rich more than the poor,’ but one ‘dependent on the people alone.’”
Other coverage of, and commentary on, the Court focuses on the extent to which the Roberts Court is an “activist” Court. In The New York Times, Adam Liptak suggests that, “[i] f judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.” Rick Hasen responds to Liptak’s analysis at his Election Law Blog.
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