In November 2006, Michigan voters overwhelmingly (58%) approved the Michigan Civil Rights Initiative (MCRI) and thus amended the State’s Constitution to prohibit preferential treatment in public education, government contracting, and public employment based on race, sex, ethnicity, or national origin. The amendment was first challenged in the Michigan federal district court for the Eastern District of Michigan, which in March 2008 upheld the law. In July 2011, a three-judge panel reversed the district court’s ruling. Finally, after granting en banc review, the Sixth Circuit upheld the panel’s ruling in an 8-7 decision issued in November 2012.
The en banc court held the MCRI violates the Fourteenth Amendment’s Equal Protection Clause because it denies minorities a “fair political process.” Relying on a political restructuring theory, the majority held that, because it has a racial focus, targets a policy or program that benefits minorities, and reallocates political power or reorders decision making so as to place special burdens on minorities’ ability to achieve their goals through that process, it violates the Equal Protection Clause. The dissent demonstrates the majority errs regarding the Supreme Court decisions on which it purports to rely.
On November 28, 2012, Attorney General Schuette petitioned the Supreme Court of the United States for review; on March 25, 2013, the Court granted the petition. On June 24, 2013, Attorney General Schuette filed his brief on the merits. On July 1, 2013, MSLF filed an amicus curiae brief in support of the Attorney General, arguing that the prohibition of preferential treatment in public education, public employment, and public contracting does not violate the Equal Protection Clause. The case was argued on October 15, 2013.
On April 22, 2014, the Court issued a 6-2 plurality decision, reversing the Sixth Circuit and agreeing with petitioner that MCRI does not violate the Equal Protection Clause. Justice Kennedy wrote an opinion, joined by Chief Justice Roberts and Justice Alito. Chief Justice Roberts filed a concurring opinion. Justice Scalia, joined by Justice Thomas, filed an opinion concurring in the judgment. Justice Breyer filed a separate concurrence. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. Justice Kagan took no part in this case. Justice Kennedy’s opinion makes clear that the Court was not considering the constitutional validity of race-based policies, but simply holding that “courts may not disempower the voters from choosing which path to follow.”