All in the Judiciary’s Hands
The precedent that this ruling out of Michigan, related to a constitutionally created ban on affirmative action, sets is astonishing:
The 2-1 decision upends a sweeping law that forced the University of Michigan and other public schools to change admission policies. The 6th U.S. Circuit Court of Appeals said the law, approved by voters in 2006, violates the 14th Amendment’s Equal Protection Clause.
The court mostly was concerned about how the affirmative action ban was created. Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said.
It sounds as if “equal protection” is being expanded to mean that minorities must have as much chance of changing a law as majorities. That remains the case, of course, inasmuch as minorities need only convince a majority to side with them, but this is something more targeted — like an affirmative action for democracy.
And if the ruling stands, think of the role that the judiciary will then play in our system. If the people’s representatives pass a law that a judicial elite doesn’t like, judges will strike it down as unconstitutional. If the people write it into the constitution, judges will strike it down as too difficult to change by democratic or judicial means.