May 5, 2014, Vol. 19, No. 32 • By TERRY EASTLAND
It is useful to ponder what would be happening now had a majority of justices reached the opposite conclusion and ruled against Michigan voters. For one thing, groups would be filing lawsuits against the seven states whose voters have passed colorblind laws similar to Michigan’s. And for another, Michigan state officials would again be defining and sorting people into racial categories for the purpose of granting, as Justice Kennedy puts it, “favored status to persons in some racial categories and not others.”
Plessy was decided in the decade when Jim Crow was beginning its strange career. For Justice Harlan, the colorblind Constitution condemned legally enforced segregation. Today, colorblind law opposes government efforts to “divvy us up by race,” as the chief justice has put it, and to prefer some citizens of certain races over others of different races in allocating limited opportunities, such as seats in classes at an elite state university or government contracts for which companies must compete.
In Schuette, the Court doesn’t take sides on colorblind law. But it also doesn’t deny the voters of Michigan or any other state the ability to choose colorblind law. It declines to stand in their way.
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