The Roberts court is deeply skeptical of what it perceives as social engineering, and that skepticism will again be tested as the Supreme Court’s new term begins this week.
Under Chief Justice John Roberts, the conservative majority has viewed government attempts to “level the playing field” as contrary to the constitutional values of the United States. It has demonstrated this concern in several important areas, including race and elections. Both issues will return to the court this year for further refining. Today, the court will hear arguments on campaign finance rules in McCutcheon v. Federal Election Commission. It would be troubling if the majority rules on these cases as it has in the recent past, interpreting the Constitution to mandate an idealized principle of equal treatment that ignores contemporary social realities.
The court will revisit racial preferences when it hears arguments in Schuette v. Coalition to Defend Affirmative Action on Oct. 15. The court will be asked to decide whether a voter-approved, constitutional amendment that bans race- and gender-preferences in Michigan conforms to the US Constitution. Michigan featured in a landmark ruling in 2003, when the high court upheld favored admissions for underrepresented minority groups at the University of Michigan Law School.
Writing for the majority at the time, then-Justice Sandra Day O’Connor also expressed her hope that “25 years from now” affirmative action will no longer be needed. A mere 10 years later, in its 2013 ruling in Fisher v. University of Texas, the court seemed to accelerate that timeline. The majority demanded that UT more strongly demonstrate that race-conscious measures were still needed to ensure a diverse student body. Indeed, the view that minorities no longer need special consideration came through loud and clear in June, when the court struck down a key provision of the Voting Rights Act of 1965.
All of these situations involve a conflict between a mandate of equal treatment and a consideration of continuing inequalities. Does the Constitution require race blindness? Or, may the law acknowledge that apparently neutral rules about admissions, voting, or preferences may in fact entrench existing racial disparities? Given current conditions, differential treatment may be necessary to promote equality for quite some time.
After all, a recent study documented the continuing underrepresentation of minority students. As of 2009, the combined African-American and Hispanic share of the college-age population was 33 percent, but their share of enrollment at top colleges was only 15 percent.
A similar tension is at work in a case related to elections – specifically the role of money in campaigns. When the justices hear arguments in McCutcheon v. Federal Election Commission today, a high court ruling three years ago will be top of mind on both sides. Observers were surprised in 2010 when the court removed bans on corporate and union campaign expenditures in the case of Citizens United against the FEC. Such restrictions had been in place to protect elections from the potentially distorting effect of massive amounts of corporate and union money. But the court ruled these bodies could exercise free speech through advertising or other spending designed to influence elections, as long they remained independent of the candidates, themselves.
In McCutcheon, the court will revisit these issues in the context of direct contributions to candidates and parties. Current law limits the total amount that an individual can give to all political candidates or parties. The cap, argue those who would do away with it, limits the ability of individuals to express their political preferences over a full range of candidates across the country. The court will need to weigh that individual interest against the systematic interest in reducing the risk of corruption by limiting the flow of money – each year reaching new records – to present and future office holders.
These race and election cases share two critical features. First, they concern efforts to fine-tune the engines of social and political equality. Great disparities exist with regard to power and wealth in American society. Education and elections serve as gateways to change and mobility. Universities and elections both play a central role in producing the country’s future leaders. Affirmative action promotes a diverse educational environment that will foster learning and mutual understanding among the officials and citizens of our heterogeneous society. Fair elections can empower the previously disadvantaged.
The second common element is the absence of the pragmatic perspective of Justice O’Connor, who retired from the court in 2006. Appointed by President Ronald Reagan, she shared the overall political perspective of many of the justices currently pressing ideals of equal treatment and expressing great skepticism about special rules, whether for minority applicants, minority voters, or corporations. However, Justice O’Connor had served in the Arizona legislature. Her jurisprudence had a practical streak, perhaps reflecting her political experience in reconciling ideal goals with messy realities. She wrote the majority opinion upholding affirmative action and co-wrote the majority opinion validating the campaign finance regulation that was overturned by Citizens United.
No member of the current court has held elective office. This term will show how the sitting justices reconcile ideals of equal treatment with the continuing inequalities surrounding us – and perhaps also serve as a reminder of the value of diversity of experience on the court itself.
Robert A. Schapiro is dean and Asa Griggs Candler professor of law at Emory University School of Law.