Proponents of race-based admissions had a rough time during oral arguments at the Supreme Court this week, as both the conservative and liberal wings of the court humiliated an attorney for the Coalition to Defend Affirmative Action for her faulty reasoning.
Shanta Driver, an attorney for the coalition, got off to a bad start when she said that the purpose of the 14th Amendment was “to protect minority rights against a white majority.”
Associate Justice Antonin Scalia immediately interrupted her.
“My goodness, I thought we’ve — we’ve held that the Fourteenth Amendment protects all races,” he said.
Scalia then asked Driver whether she could cite any Supreme Court case in support of her racial view of the Fourteenth Amendment.
“No case of yours,” she said.
But it was not just the conservative justices who were exasperated by Driver’s arguments. At one point, even Associate Justice Sandra Sotomayor found fault with the coalition’s line of thinking.
When Driver gave her view that the Constitution prohibits voters from banning affirmative action because doing so would impose a burden on minority groups seeking special privileges, Sotomayor corrected her.
“It can’t be that, because the normal political process imposes burdens on different groups,” said Sotomayor.
Driver quickly backpedaled, and said she agreed with Sotomayor’s point.
This behavior irked one of the other liberal justices, Associate Justice Stephen Breyer.
“Don’t let me put words in your mouth,” Breyer told Driver. “Think what you think here.”
Driver was a last minute replacement for attorney George Washington, the lead counsel for the Coalition to Defend Affirmative Action, Integration and Immigrant Rights By Any Means Necessary (also known as BAMN). It is unclear why Driver presented BAMN’s argument instead of Washington, who was present in the courtroom.
Washington did not respond to a request for clarification.
The case before the court is Schuette v. Coalition to Defend Affirmative Action. At issue is the Michigan Civil Rights Initiative, which prohibits the consideration of race in admissions and hiring at public universities in Michigan and was approved by 58 percent of voters in 2006. The initiative’s opponents have argued that it makes it too difficult for racial minorities to lobby universities for special treatment, and thus violates the equal protection clause of the Fourteenth Amendment. (RELATED: TheDC exclusive: Affirmative action opponents prepare for Supreme Court showdown)
But Michigan Attorney General Bill Schuette and Solicitor General John Bursch argued that there is nothing discriminatory about banning racial discrimination.
The court’s five right-leaning justices seemed likely to uphold MCRI, while left-leaning justices Ruth Bader Ginsberg and Sotomayor seemed likely to strike it down. Breyer’s position was less clear. Associate Justice Elena Kagan recused herself.
Jennifer Gratz, an anti-affirmative action activist who led the campaign to pass MCRI and was present for oral arguments this week, expected her side to prevail.
“I think it could be a 6-2 decision,” she told The Daily Caller. “I think that we will win and that MCRI will be reinstated.”